Exhibit 4.1
ENTERPRISE PRODUCTS OPERATING LLC
AS ISSUER,
ENTERPRISE PRODUCTS PARTNERS L.P.
AS PARENT GUARANTOR,
and
WELLS FARGO BANK,
NATIONAL ASSOCIATION,
AS TRUSTEE
SEVENTEENTH SUPPLEMENTAL INDENTURE
Dated as of October 27, 2009
to
Indenture dated as of October 4, 2004
7.625% Senior Notes due 2012
6.125% Senior Notes due 2013
5.90% Senior Notes due 2013
6.65% Senior Notes due 2018
7.55% Senior Notes due 2038
TABLE OF CONTENTS
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Page
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ARTICLE I
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THE NOTES
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SECTION 1.1 Form
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SECTION 1.2 Title, Amount and Payment of Principal and Interest
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SECTION 1.3 Registrar and Paying Agent
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SECTION 1.4 Transfer and Exchange
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SECTION 1.5 Guarantee of the Notes
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SECTION 1.6 Defeasance and Discharge
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SECTION 1.7 Amendment to Section 4.12 of the Original Indenture
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SECTION 1.8 Amendment to Section 4.13 of the Original Indenture
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ARTICLE II
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REDEMPTION
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SECTION 2.1 Redemption
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ARTICLE III
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MISCELLANEOUS PROVISIONS
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SECTION 3.1 Table of Contents, Headings, etc.
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SECTION 3.2 Counterpart Originals
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SECTION 3.3 Governing Law
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Exhibit A Form of Note for the 7.625% Senior Notes due 2012
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A-1
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Exhibit B Form of Note for the 6.125% Senior Notes due 2013
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B-1
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Exhibit C Form of Note for the 5.90% Senior Notes due 2013
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C-1
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Exhibit D Form of Note for the 6.65% Senior Notes due 2018
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D-1
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Exhibit E Form of Note for the 7.55% Senior Notes due 2038
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E-1
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i
THIS SEVENTEENTH SUPPLEMENTAL INDENTURE dated as of October 27, 2009, is among Enterprise
Products Operating LLC, a Texas limited liability company (the Issuer), Enterprise Products
Partners L.P., a Delaware limited partnership (the Parent Guarantor), and Wells Fargo Bank,
National Association, a national banking association, as trustee (the Trustee). Each capitalized
term used but not defined in this Seventeenth Supplemental Indenture shall have the meaning
assigned to such term in the Original Indenture (as defined below).
RECITALS:
WHEREAS, Enterprise Products Operating L.P. and the Parent Guarantor have executed and
delivered to the Trustee an Indenture, dated as of October 4, 2004 (the Original Indenture),
providing for the issuance by Enterprise Products Operating L.P. from time to time of its
debentures, notes, bonds or other evidences of indebtedness, issued and to be issued in one or more
series unlimited as to principal amount (the Debt Securities), and the guarantee by each
Guarantor of the Debt Securities (the Guarantee);
WHEREAS, the Issuer and the Parent Guarantor have executed and delivered to the Trustee a
Tenth Supplemental Indenture, dated as of June 30, 2007, providing for the Issuer as the successor
issuer (the Original Indenture together with the Tenth Supplemental Indenture, the Base
Indenture);
WHEREAS, on or before the date hereof the Issuer has issued several series of Debt Securities
pursuant to previous supplements to the Base Indenture;
WHEREAS, the Issuer has duly authorized and desires to cause to be issued pursuant to the Base
Indenture and this Seventeenth Supplemental Indenture each of the following new series of Debt
Securities (collectively, the Notes):
(i) a series of Debt Securities in the aggregate principal amount of $490,467,000, which
series shall be designated as the 7.625% Senior Notes due 2012;
(ii) a series of Debt Securities in the aggregate principal amount of $182,560,000, which
series shall be designated as the 6.125% Senior Notes due 2013;
(iii) a series of Debt Securities in the aggregate principal amount of $237,600,000, which
series shall be designated as the 5.90% Senior Notes due 2013;
(iv) a series of Debt Securities in the aggregate principal amount of $349,690,000, which
series shall be designated as the 6.65% Senior Notes due 2018; and
(v) a series of Debt Securities in the aggregate principal amount of $399,575,000, which
series shall be designated as the 7.55% Senior Notes due 2038.
WHEREAS, all of such Notes will be guaranteed by the Parent Guarantor as provided in
Article XIV of the Original Indenture;
WHEREAS, the Issuer desires to cause the issuance of the Notes pursuant to Sections 2.01 and
2.03 of the Original Indenture, which sections permit the execution of indentures supplemental
thereto to establish the form and terms of Debt Securities of any series;
WHEREAS, pursuant to Section 9.01 of the Original Indenture, the Issuer and the Parent
Guarantor have requested that the Trustee join in the execution of this Seventeenth Supplemental
Indenture to establish the form and terms of the Notes;
WHEREAS, all things necessary have been done to make the Notes, when executed by the Issuer
and authenticated and delivered hereunder and under the Base Indenture and duly issued by the
Issuer, and the Guarantee of the Parent Guarantor, when the Notes are duly issued by the Issuer,
the valid obligations of the Issuer and the Parent Guarantor, respectively, and to make this
Seventeenth Supplemental Indenture a valid agreement of the Issuer and the Parent Guarantor
enforceable in accordance with its terms.
NOW, THEREFORE, the Issuer, the Parent Guarantor and the Trustee hereby agree that the
following provisions shall supplement the Base Indenture:
ARTICLE I
THE NOTES
SECTION 1.1
Form
.
(1) The 7.625% Senior Notes due 2012 and the related Trustees certificate of authentication
shall be substantially in the form of
Exhibit A-1
to this Seventeenth Supplemental
Indenture;
(2) the 6.125% Senior Notes due 2013 and the related Trustees certificate of authentication
shall be substantially in the form of
Exhibit A-2
to this Seventeenth Supplemental
Indenture;
(3) the 5.90% Senior Notes due 2013 and the related Trustees certificate of authentication
shall be substantially in the form of
Exhibit A-3
to this Seventeenth Supplemental
Indenture;
(4) the 6.65% Senior Notes due 2018 and the related Trustees certificate of authentication
shall be substantially in the form of
Exhibit A-4
to this Seventeenth Supplemental
Indenture; and
(5) the 7.55% Senior Notes due 2038 and the related Trustees certificate of authentication
shall be substantially in the form of
Exhibit A-5
to this Seventeenth Supplemental
Indenture.
Exhibits A-1
through
A-5
are hereby incorporated into this Seventeenth
Supplemental Indenture. The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Seventeenth Supplemental Indenture and to the extent
applicable,
the Issuer, the Parent Guarantor and the Trustee, by their execution and delivery of this
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Seventeenth Supplemental Indenture, expressly agree to such terms and provisions and to be bound
thereby.
The Notes shall be issued only as Registered Securities. The Notes shall be issued upon
original issuance in whole in the form of one or more Global Securities (the Book-Entry Notes).
Each Book-Entry Note shall represent such of the Outstanding Notes as shall be specified therein
and shall provide that it shall represent the aggregate amount of Outstanding Notes from time to
time endorsed thereon and that the aggregate amount of Outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Book-Entry Note to reflect the amount, or any increase or decrease in the
amount, of Outstanding Notes represented thereby shall be made by the Trustee in accordance with
written instructions or such other written form of instructions as is customary for the Depositary,
from the Depositary or its nominee on behalf of any Person having a beneficial interest in the
Book-Entry Note.
The Issuer initially appoints The Depository Trust Company (DTC) to act as Depositary with
respect to the Book-Entry Notes.
SECTION 1.2
Title, Amount and Payment of Principal and Interest
.
(1)
7.625% Senior Notes due 2012
. The 7.625% Senior Notes due 2012 shall be entitled
the 7.625% Senior Notes due 2012. The Trustee shall authenticate and deliver (i) the 7.625%
Senior Notes due 2012 for original issue on the date hereof (the 7.625% Original Notes) in the
aggregate principal amount of $490,467,000 and (ii) additional 7.625% Senior Notes due 2012 for
original issue from time to time after the date hereof in such principal amounts as may be
specified in the Company Order described in this sentence, provided that no such additional 7.625%
Senior Notes due 2012 may be issued at a price that would cause such 7.625% Senior Notes due 2012
to have original issue discount within the meaning of the Internal Revenue Code of 1986, as
amended, in each case upon a Company Order for the authentication and delivery thereof and
satisfaction of the other provisions of Section 2.05 of the Original Indenture. Such order shall
specify the amount of the 7.625% Senior Notes due 2012 to be authenticated, the date on which the
original issue of 7.625% Senior Notes due 2012 is to be authenticated, and the name or names of the
initial Holder or Holders. The aggregate principal amount of 7.625% Senior Notes due 2012 that may
be outstanding at any time may not exceed $490,467,000 plus such additional principal amounts as
may be issued and authenticated pursuant to clause (ii) of this paragraph (except as provided in
Section 2.09 of the Original Indenture).
The principal amount of each 7.625% Senior Note due 2012 shall be payable on February 15,
2012. Each 7.625% Senior Note due 2012 shall bear interest from and including August 15, 2009, or
from and including the most recent date to which interest has been paid, at the fixed rate of
7.625% per annum. The dates on which interest on the 7.625% Senior Notes due 2012 shall be payable
shall be February 15 and August 15 of each year, commencing February 15, 2010, in the case of the
7.625% Original Notes (the 7.625% Interest Payment Dates). The regular
record date for interest payable on the 7.625% Senior Notes due 2012 on any 7.625% Interest
Payment Date shall be February 1 or August 1 (the 7.625% Regular Record Date), as the case may
be, preceding such 7.625% Interest Payment Date.
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Payments of principal of, premium, if any, and interest due on the 7.625% Senior Notes due
2012 representing Book-Entry Notes on any 7.625% Interest Payment Date or at maturity will be made
available to the Trustee by 11:00 a.m., New York City time, on such date, unless such date falls on
a day which is not a Business Day, in which case such payments will be made available to the
Trustee by 11:00 a.m., New York City time, on the next Business Day. As soon as possible
thereafter, the Trustee will make such payments to the Depositary.
(2)
6.125% Senior Notes due 2013
. The 6.125% Senior Notes due 2013 shall be entitled
the 6.125% Senior Notes due 2013. The Trustee shall authenticate and deliver (i) the 6.125%
Senior Notes due 2013 for original issue on the date hereof (the 6.125% Original Notes) in the
aggregate principal amount of $182,560,000 and (ii) additional 6.125% Senior Notes due 2013 for
original issue from time to time after the date hereof in such principal amounts as may be
specified in the Company Order described in this sentence, provided that no such additional 6.125%
Senior Notes due 2013 may be issued at a price that would cause such 6.125% Senior Notes due 2013
to have original issue discount within the meaning of the Internal Revenue Code of 1986, as
amended, in each case upon a Company Order for the authentication and delivery thereof and
satisfaction of the other provisions of Section 2.05 of the Original Indenture. Such order shall
specify the amount of the 6.125% Senior Notes due 2013 to be authenticated, the date on which the
original issue of 6.125% Senior Notes due 2013 is to be authenticated, and the name or names of the
initial Holder or Holders. The aggregate principal amount of 6.125% Senior Notes due 2013 that may
be outstanding at any time may not exceed $182,560,000 plus such additional principal amounts as
may be issued and authenticated pursuant to clause (ii) of this paragraph (except as provided in
Section 2.09 of the Original Indenture).
The principal amount of each 6.125% Senior Note due 2013 shall be payable on February 1, 2013.
Each 6.125% Senior Note due 2013 shall bear interest from and including August 1, 2009, or from
and including the most recent date to which interest has been paid, at the fixed rate of 6.125% per
annum. The dates on which interest on the 6.125% Senior Notes due 2013 shall be payable shall be
February 1 and August 1 of each year, commencing February 1, 2010, in the case of the 6.125%
Original Notes (the 6.125% Interest Payment Dates). The regular record date for interest payable
on the 6.125% Senior Notes due 2013 on any 6.125% Interest Payment Date shall be January 15 or July
15 (the 6.125% Regular Record Date), as the case may be, preceding such 6.125% Interest Payment
Date.
Payments of principal of, premium, if any, and interest due on the 6.125% Senior Note due 2013
representing Book-Entry Notes on any 6.125% Interest Payment Date or at maturity will be made
available to the Trustee by 11:00 a.m., New York City time, on such date, unless such date falls on
a day which is not a Business Day, in which case such payments will be made available to the
Trustee by 11:00 a.m., New York City time, on the next Business Day. As soon as possible
thereafter, the Trustee will make such payments to the Depositary.
(3)
5.90% Senior Notes due 2013
. The 5.90% Senior Notes due 2013 shall be entitled
the 5.90% Senior Notes due 2013. The Trustee shall authenticate and deliver (i) the 5.90% Senior
Notes due 2013 for original issue on the date hereof (the 5.90% Original Notes) in the aggregate
principal amount of $237,600,000 and (ii) additional 5.90% Senior Notes due 2013 for original issue
from time to time after the date hereof in such principal amounts as may
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be specified in the
Company Order described in this sentence, provided that no such additional 5.90% Senior Notes due
2013 may be issued at a price that would cause such 5.90% Senior Notes due 2013 to have original
issue discount within the meaning of the Internal Revenue Code of 1986, as amended, in each case
upon a Company Order for the authentication and delivery thereof and satisfaction of the other
provisions of Section 2.05 of the Original Indenture. Such order shall specify the amount of the
5.90% Senior Notes due 2013 to be authenticated, the date on which the original issue of 5.90%
Senior Notes due 2013 is to be authenticated, and the name or names of the initial Holder or
Holders. The aggregate principal amount of 5.90% Senior Notes due 2013 that may be outstanding at
any time may not exceed $237,600,000 plus such additional principal amounts as may be issued and
authenticated pursuant to clause (ii) of this paragraph (except as provided in Section 2.09 of the
Original Indenture).
The principal amount of each 5.90% Senior Note due 2013 shall be payable on April 15, 2013.
Each 5.90% Senior Note due 2013 shall bear interest from and including October 15, 2009, or from
and including the most recent date to which interest has been paid, at the fixed rate of 5.90% per
annum. The dates on which interest on the 5.90% Senior Notes due 2013 shall be payable shall be
April 15 and October 15 of each year, commencing April 15, 2010, in the case of the 5.90% Original
Notes (the 5.90% Interest Payment Dates). The regular record date for interest payable on the
5.90% Senior Notes due 2013 on any 5.90% Interest Payment Date shall be April 1 or October 1 (the
5.90% Regular Record Date), as the case may be, preceding such 5.90% Interest Payment Date.
Payments of principal of, premium, if any, and interest due on the 5.90% Senior Note due 2013
representing Book-Entry Notes on any 5.90% Interest Payment Date or at maturity will be made
available to the Trustee by 11:00 a.m., New York City time, on such date, unless such date falls on
a day which is not a Business Day, in which case such payments will be made available to the
Trustee by 11:00 a.m., New York City time, on the next Business Day. As soon as possible
thereafter, the Trustee will make such payments to the Depositary.
(4)
6.65% Senior Notes due 2018
. The 6.65% Senior Notes due 2018 shall be entitled
the 6.65% Senior Notes due 2018. The Trustee shall authenticate and deliver (i) the 6.65% Senior
Notes due 2018 for original issue on the date hereof (the 6.65% Original Notes) in the aggregate
principal amount of $349,690,000 and (ii) additional 6.65% Senior Notes due 2018 for original issue
from time to time after the date hereof in such principal amounts as may be specified in the
Company Order described in this sentence, provided that no such additional 6.65% Senior Notes due
2018 may be issued at a price that would cause such 6.65% Senior Notes due 2018 to have original
issue discount within the meaning of the Internal Revenue Code of 1986, as amended, in each case
upon a Company Order for the authentication and delivery thereof and satisfaction of the other
provisions of Section 2.05 of the Original Indenture. Such order shall specify the amount of the
6.65% Senior Notes due 2018 to be authenticated, the date on which the original issue of 6.65%
Senior Notes due 2018 is to be authenticated, and the name or names of the initial Holder or
Holders. The aggregate principal amount of 6.65% Senior
Notes due 2018 that may be outstanding at any time may not exceed $349,690,000 plus such
additional principal amounts as may be issued and authenticated pursuant to clause (ii) of this
paragraph (except as provided in Section 2.09 of the Original Indenture).
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The principal amount of each 6.65% Senior Note due 2018 shall be payable on April 15, 2018.
Each 6.65% Senior Note due 2018 shall bear interest from and including October 15, 2009, or from
and including the most recent date to which interest has been paid, at the fixed rate of 6.65% per
annum. The dates on which interest on the 6.65% Senior Notes due 2018 shall be payable shall be
April 15 and October 15 of each year, commencing April 15, 2010, in the case of the 6.65% Original
Notes (the 6.65% Interest Payment Dates). The regular record date for interest payable on the
6.65% Senior Notes due 2018 on any 6.65% Interest Payment Date shall be April 1 or October 1 (the
6.65% Regular Record Date), as the case may be, preceding such 6.65% Interest Payment Date.
Payments of principal of, premium, if any, and interest due on the 6.65% Senior Note due 2018
representing Book-Entry Notes on any 6.65% Interest Payment Date or at maturity will be made
available to the Trustee by 11:00 a.m., New York City time, on such date, unless such date falls on
a day which is not a Business Day, in which case such payments will be made available to the
Trustee by 11:00 a.m., New York City time, on the next Business Day. As soon as possible
thereafter, the Trustee will make such payments to the Depositary.
(5)
7.55% Senior Notes due 2038
. The 7.55% Senior Notes due 2038 shall be entitled
the 7.55% Senior Notes due 2038. The Trustee shall authenticate and deliver (i) the 7.55% Senior
Notes due 2038 for original issue on the date hereof (the 7.55% Original Notes) in the aggregate
principal amount of $399,575,000 and (ii) additional 7.55% Senior Notes due 2038 for original issue
from time to time after the date hereof in such principal amounts as may be specified in the
Company Order described in this sentence, provided that no such additional 7.55% Senior Notes due
2038 may be issued at a price that would cause such 7.55% Senior Notes due 2038 to have original
issue discount within the meaning of the Internal Revenue Code of 1986, as amended, in each case
upon a Company Order for the authentication and delivery thereof and satisfaction of the other
provisions of Section 2.05 of the Original Indenture. Such order shall specify the amount of the
7.55% Senior Notes due 2038 to be authenticated, the date on which the original issue of 7.55%
Senior Notes due 2038 is to be authenticated, and the name or names of the initial Holder or
Holders. The aggregate principal amount of 7.55% Senior Notes due 2038 that may be outstanding at
any time may not exceed $399,575,000 plus such additional principal amounts as may be issued and
authenticated pursuant to clause (ii) of this paragraph (except as provided in Section 2.09 of the
Original Indenture).
The principal amount of each 7.55% Senior Note due 2038 shall be payable on April 15, 2038.
Each 7.55% Senior Note due 2038 shall bear interest from and including October 15, 2009, or from
and including the most recent date to which interest has been paid, at the fixed rate of 7.55% per
annum. The dates on which interest on the 7.55% Senior Notes due 2038 shall be payable shall be
April 15 and October 15 of each year, commencing April 15, 2010, in the case of the 7.55% Original
Notes (the 7.55% Interest Payment Dates). The regular record date for interest payable on the
7.55% Senior Notes due 2038 on any 7.55% Interest Payment Date shall be April 1 or October 1 (the
7.55% Regular Record Date), as the case may be, preceding such 7.55% Interest Payment Date.
Payments of principal of, premium, if any, and interest due on the 7.55% Senior Note due 2038
representing Book-Entry Notes on any 7.55% Interest Payment Date or at maturity will be made
available to the Trustee by 11:00 a.m., New York City time, on such date, unless such date
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falls on
a day which is not a Business Day, in which case such payments will be made available to the
Trustee by 11:00 a.m., New York City time, on the next Business Day. As soon as possible
thereafter, the Trustee will make such payments to the Depositary.
SECTION 1.3
Registrar and Paying Agent
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The Issuer initially appoints the Trustee as Registrar and paying agent with respect to the
Notes. The office or agency in the City and State of New York where Notes may be presented for
registration of transfer or exchange and the Place of Payment for the Notes shall initially be the
corporate trust office of the Trustee located at 45 Broadway, 14th Floor, New York, New York 10006.
SECTION 1.4
Transfer and Exchange
.
The transfer and exchange of Book-Entry Notes or beneficial interests therein shall be
effected through the Depositary, in accordance with Section 2.15 of the Original Indenture and the
rules and procedures of the Depositary therefor.
SECTION 1.5
Guarantee of the Notes
.
In accordance with Article XIV of the Original Indenture, the Notes will be fully,
unconditionally and absolutely guaranteed on an unsecured, unsubordinated basis by the Parent
Guarantor. Initially, there will be no Subsidiary Guarantors.
SECTION 1.6
Defeasance and Discharge
.
The Notes shall be subject to satisfaction and discharge and to both legal defeasance and
covenant defeasance as contemplated by Article XI of the Original Indenture.
SECTION 1.7
Amendment to Section 4.12 of the Original Indenture
.
The last paragraph of Section 4.12 of the Original Indenture is hereby amended and restated in
relation solely to the Notes to read as follows:
Notwithstanding the foregoing provisions of this Section, the Parent Guarantor may, and may
permit any Subsidiary to, effect any Sale/Leaseback Transaction that is not excepted by
clauses (a) through (d), inclusive, of this Section, provided that the Attributable
Indebtedness from such Sale/Leaseback Transaction, together with the aggregate principal amount of
all other such Attributable Indebtedness deemed to be outstanding and all outstanding Indebtedness
(other than the Debt Securities) secured by liens, other than Permitted Liens, upon Principal
Properties or upon any capital stock of any Restricted Subsidiary, do not exceed 10% of
Consolidated Net Tangible Assets.
SECTION 1.8
Amendment to Section 4.13 of the Original Indenture
.
The last sentence of Section 4.13 of the Original Indenture is hereby amended and restated in
relation solely to the Notes to read as follows:
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Notwithstanding the foregoing, the Parent Guarantor may, and may permit any Subsidiary to,
create, assume, incur or suffer to exist any lien, other than a Permitted Lien, upon any Principal
Property or upon any capital stock of any Restricted Subsidiary to secure Indebtedness of the
Parent Guarantor, the Company or any other Person (other than the Debt Securities), without in any
such case making effective provision whereby all the Debt Securities Outstanding under this
Indenture are secured equally and ratably with, or prior to, such Indebtedness so long as such
Indebtedness is secured; provided that the aggregate principal amount of all Indebtedness then
outstanding secured by such lien and all similar liens, together with the aggregate amount of
Attributable Indebtedness deemed to be outstanding in respect of all Sale/Leaseback Transactions
(exclusive of any such Sale/Leaseback Transactions otherwise permitted under clauses (a) through
(d) of Section 4.12), does not exceed 10% of Consolidated Net Tangible Assets.
ARTICLE II
REDEMPTION
SECTION 2.1
Redemption.
The Issuer shall have no obligation to redeem, purchase or repay the Notes pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the option of a Holder thereof.
The Issuer, at its option, may redeem the Notes in accordance with the provisions of paragraph 5 of
the Notes and Article III of the Original Indenture.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1
Table of Contents, Headings, etc.
The table of contents and headings of the Articles and Sections of this Seventeenth
Supplemental Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 3.2
Counterpart Originals
.
The parties may sign any number of copies of this Seventeenth Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same agreement.
SECTION 3.3
Governing Law
.
THIS SEVENTEENTH SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Seventeenth Supplemental Indenture to
be duly executed as of the day and year first above written.
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ENTERPRISE PRODUCTS OPERATING LLC,
as Issuer
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By:
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Enterprise Products OLPGP, Inc.,
its sole manager
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By:
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/s/ W. Randall Fowler
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Name: W. Randall Fowler
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Title: Executive Vice President and
Chief Financial Officer
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ENTERPRISE PRODUCTS PARTNERS L.P.,
as Parent Guarantor
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By:
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Enterprise Products GP, LLC,
its General Partner
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By:
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/s/ W. Randall Fowler
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Name: W. Randall Fowler
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Title: Executive Vice President and
Chief Financial Officer
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WELLS FARGO BANK,
NATIONAL ASSOCIATION
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as Trustee
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By:
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/s/ Patrick T. Giordano
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Name: Patrick T. Giordano
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Title: Vice President
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Seventeenth Supplemental Indenture Signature Page
Exhibit A
FORM OF NOTE
[
FACE OF SECURITY
]
[
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC) (55 WATER STREET, NEW YORK, NEW YORK 10041) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
]
*
[
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO HEREIN.
]
*
|
|
|
|
|
Principal Amount
|
|
|
|
No.
|
|
|
|
|
$
[
which amount may be
|
|
|
increased or decreased by the Schedule
|
|
|
of Increases and Decreases in Global Security attached hereto.
]
*
|
ENTERPRISE PRODUCTS OPERATING LLC
7.625% SENIOR NOTE DUE 2012
CUSIP
ENTERPRISE PRODUCTS OPERATING LLC, a Texas limited liability company (the Company, which
term includes any successor under the Indenture hereinafter referred to), for value received,
hereby promises to pay to
[
Cede & Co.
]
*
or its registered assigns, the principal sum of
($
) U.S. dollars,
[
or such greater or lesser principal sum as is shown
on the attached Schedule of Increases and Decreases in Global Security
]
*
, on February
15, 2012 in such coin and currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, and to pay interest at an annual rate
of 7.625% payable on February 15 and August 15 of each year, to the person in
|
|
|
*
|
|
To be included in a Book-Entry Note.
|
A-1
whose name the Security (as defined on the reverse side of this security) is registered at the
close of business on the record date for such interest, which shall be the preceding February 1 and
August 1 (each, a Regular Record Date), respectively, payable commencing on February 15, 2010,
with interest accruing from and including August 15, 2009, or from and including the most recent
date to which interest shall have been paid.
Reference is made to the further provisions of this Security set forth on the reverse hereof.
Such further provisions shall for all purposes have the same effect as though fully set forth at
this place.
The statements in the legends set forth in this Security are an integral part of the terms of
this Security and by acceptance hereof the Holder of this Security agrees to be subject to, and
bound by, the terms and provisions set forth in each such legend.
This Security is issued in respect of a series of Debt Securities of an initial aggregate of
$490,467,000 in principal amount designated as the 7.625% Senior Notes due 2012 of the Company and
is governed by the Indenture dated as of October 4, 2004 (the Original Indenture), duly executed
and delivered by the Company, as issuer, and Enterprise Products Partners L.P., as parent guarantor
(the Parent Guarantor), to Wells Fargo Bank, National Association, as trustee (the Trustee), as
amended by the Tenth Supplemental Indenture, dated as of June 30, 2007, providing for the Company
as the successor issuer (the Tenth Supplemental Indenture), and the Seventeenth Supplemental
Indenture dated as of October 27, 2009, duly executed by the Company, the Parent Guarantor and the
Trustee (the Seventeenth Supplemental Indenture, and together with the Original Indenture and the
Tenth Supplemental Indenture, the Indenture). The terms of the Indenture are incorporated herein
by reference. This Security shall in all respects be entitled to the same benefits as definitive
Debt Securities under the Indenture.
If and to the extent any provision of the Indenture limits, qualifies or conflicts with any
other provision of the Indenture that is required to be included in the Indenture or is deemed
applicable to the Indenture by virtue of the provisions of the Trust Indenture Act of 1939, as
amended (the TIA), such required provision shall control.
The Company hereby irrevocably undertakes to the Holder hereof to exchange this Security in
accordance with the terms of the Indenture without charge.
This Security shall not be valid or become obligatory for any purpose until the Trustees
Certificate of Authentication hereon shall have been manually signed by the Trustee under the
Indenture.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by its sole
manager.
Dated: October 27, 2009
|
|
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|
|
|
ENTERPRISE PRODUCTS OPERATING LLC
|
|
|
By:
|
Enterprise Products OLPGP, Inc.,
|
|
|
|
its sole manager
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
W. Randall Fowler
|
|
|
|
Title:
|
Executive Vice President and
Chief Financial Officer
|
|
|
TRUSTEES CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated herein referred to in the
within-mentioned Indenture.
|
|
|
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
|
|
|
By:
|
|
|
|
|
Authorized Signatory
|
|
|
|
|
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|
A-3
[
REVERSE OF SECURITY
]
ENTERPRISE PRODUCTS OPERATING LLC
7.625% SENIOR NOTE DUE 2012
This Security is one of a duly authorized issue of debentures, notes or other evidences of
indebtedness of the Company (the Debt Securities) of the series hereinafter specified, all issued
or to be issued under and pursuant to the Indenture, to which Indenture reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company, the Parent Guarantor and the Holders of the Debt
Securities. The Debt Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times, may bear interest (if
any) at different rates, may be subject to different sinking, purchase or analogous funds (if any)
and may otherwise vary as provided in the Indenture. This Security is one of a series designated
as the 7.625% Senior Notes due 2012 of the Company, in initial aggregate principal amount of
$490,467,000 (the Securities).
Interest
.
The Company promises to pay interest on the principal amount of this Security at the rate of
7.625% per annum.
The Company will pay interest semi-annually on February 15 and August 15 of each year (each an
Interest Payment Date), commencing February 15, 2010. Interest on the Securities will accrue
from and including the most recent date to which interest has been paid or, if no interest has been
paid on the Securities, from and including August 15, 2009. Interest will be computed on the basis
of a 360-day year consisting of twelve 30-day months. The Company shall pay interest (including
post-petition interest in any proceeding under any applicable bankruptcy laws) on overdue
installments of interest (without regard to any applicable grace period) and on overdue principal
and premium, if any, from time to time on demand at the same rate per annum, in each case to the
extent lawful.
Method of Payment
.
The Company shall pay interest on the Securities (except Defaulted Interest) to the persons
who are the registered Holders at the close of business on the Regular Record Date immediately
preceding the Interest Payment Date. Any such interest not so punctually paid or duly provided for
(Defaulted Interest) may be paid to the persons who are registered Holders at the close of
business on a special record date for the payment of such Defaulted Interest, or in any other
lawful manner not inconsistent with the requirements of any securities exchange on which such
Securities may then be listed if such manner of payment shall be deemed practicable by the Trustee,
as more fully provided in the Indenture. The Company shall pay principal, premium, if any, and
interest in such coin or currency of the United States of America as at the time of payment shall
be legal tender for payment of public and private debts. Payments in respect of a Global Security
(including principal, premium, if any, and interest) will be made by wire transfer of immediately
available funds to the accounts specified by the Depositary. Payments in respect of Securities in
definitive form (including principal, premium, if any, and
A-4
interest) will be made at the office or agency of the Company maintained for such purpose
within The City of New York, which initially will be the corporate trust office of Wells Fargo
Bank, National Association at 45 Broadway, 14th Floor, New York, New York 10006, or, at the option
of the Company, payment of interest may be made by check mailed to the Holders on the relevant
record date at their addresses set forth in the Debt Security Register of Holders or at the option
of the Holder, payment of interest on Securities in definitive form will be made by wire transfer
of immediately available funds to any account maintained in the United States, provided such Holder
has requested such method of payment and provided timely wire transfer instructions to the paying
agent. The Holder must surrender this Security to a paying agent to collect payment of principal.
Paying Agent and Registrar
.
Initially, Wells Fargo Bank, National Association will act as paying agent and Registrar. The
Company may change any paying agent or Registrar at any time upon notice to the Trustee and the
Holders. The Company may act as paying agent.
Indenture
.
This Security is one of a duly authorized issue of Debt Securities of the Company issued and
to be issued in one or more series under the Indenture.
Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein.
The terms of the Securities include those stated in the Original Indenture, those made part of the
Indenture by reference to the TIA, as in effect on the date of the Original Indenture, and those
terms stated in the Seventeenth Supplemental Indenture. The Securities are subject to all such
terms, and Holders of Securities are referred to the Original Indenture, the Seventeenth
Supplemental Indenture and the TIA for a statement of them. The Securities of this series are
general unsecured obligations of the Company limited to an initial aggregate principal amount of
$490,467,000;
provided, however
, that the authorized aggregate principal amount of such series may
be increased from time to time as provided in the Seventeenth Supplemental Indenture.
Optional Redemption
.
The Securities are redeemable, at the option of the Company, at any time in whole, or from
time to time in part, at a redemption price (the Make-Whole Price) equal to the greater of:
(i) 100% of the principal amount of the Securities to be redeemed; or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest (at the rate in effect on the
date of calculation of the redemption price) on the Securities to be redeemed (exclusive of
interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the applicable Treasury Yield plus
35 basis points; plus, in either case, accrued interest to the Redemption Date.
A-5
The actual Make-Whole Price, calculated as provided above, shall be calculated and certified
to the Trustee and the Company by the Independent Investment Banker. For purposes of determining
the Make-Whole Price, the following definitions are applicable:
Treasury Yield means, with respect to any Redemption Date applicable to the Securities, the
rate per annum equal to the semi-annual equivalent yield to maturity (computed as of the third
Business Day immediately preceding such Redemption Date) of the Comparable Treasury Issue, assuming
a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal
to the applicable Comparable Treasury Price for the Redemption Date.
Comparable Treasury Issue means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining terms of the Securities to be redeemed;
provided, however,
that if no
maturity is within three months before or after the maturity date for the Securities, yields for
the two published maturities most closely corresponding to such United States Treasury security
will be determined and the treasury rate will be interpolated or extrapolated from those yields on
a straight line basis rounding to the nearest month.
Independent Investment Banker means any of Citigroup Global Markets Inc., J.P. Morgan
Securities Inc., UBS Securities LLC and Wachovia Capital Markets, LLC and their respective
successors, or, if no such firm is willing and able to select the applicable Comparable Treasury
Issue, an independent investment banking institution of national standing appointed by the Trustee
and reasonably acceptable to the Company.
Comparable Treasury Price means, with respect to any Redemption Date, (a) the average of the
Reference Treasury Dealer Quotations for the Redemption Date, after excluding the highest and
lowest Reference Treasury Dealer Quotations, or (b) if the Independent Investment Banker obtains
fewer than five Reference Treasury Dealer Quotations, the average of all such quotations.
Reference Treasury Dealer means (a) each of Citigroup Global Markets Inc., J.P. Morgan
Securities Inc., UBS Securities LLC and Wachovia Capital Markets, LLC and their respective
successors, and (b) one other primary U.S. government securities dealer in New York City selected
by the Independent Investment Banker (each, a Primary Treasury Dealer);
provided
,
however
, that
if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company will substitute
therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date for the Securities, an average, as determined by an Independent Investment
Banker, of the bid and asked prices for the Comparable Treasury Issue for the Securities (expressed
in each case as a percentage of its principal amount) quoted in writing to an Independent
Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
A-6
Except as set forth above, the Securities will not be redeemable prior to their Stated
Maturity and will not be entitled to the benefit of any sinking fund.
Securities called for optional redemption become due on the Redemption Date. Notices of
optional redemption will be mailed at least 30 but not more than 60 days before the Redemption Date
to each Holder of the Securities to be redeemed at its registered address. The notice of optional
redemption for the Securities will state, among other things, the amount of Securities to be
redeemed, the Redemption Date, the method of calculating such redemption price and the place(s)
that payment will be made upon presentation and surrender of Securities to be redeemed. Unless the
Company defaults in payment of the redemption price, interest will cease to accrue on the
Redemption Date with respect to any Securities that have been called for optional redemption. If
less than all the Securities are redeemed at any time, the Trustee will select the Securities to be
redeemed on a pro rata basis or by any other method the Trustee deems fair and appropriate.
The Securities may be redeemed in part in multiplies of $1,000 only. Any such redemption will
also comply with Article III of the Indenture.
Denominations; Transfer; Exchange
.
The Securities are to be issued in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000 in excess thereof. A Holder may register the transfer of,
or exchange, Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture.
Person Deemed Owners
.
The registered Holder of a Security may be treated as the owner of it for all purposes.
Amendment; Supplement; Waiver
.
Subject to certain exceptions, the Indenture may be amended or supplemented, and any existing
Event of Default or compliance with any provision may be waived, with the consent of the Holders of
a majority in principal amount of the Outstanding Debt Securities of each series affected. Without
consent of any Holder of a Security, the parties thereto may amend or supplement the Indenture to,
among other things, cure any ambiguity or omission, to correct any defect or inconsistency, or to
make any other change that does not adversely affect the rights of any Holder of a Security. Any
such consent or waiver by the Holder of this Security (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and owners of this
Security and any Securities which may be issued in exchange or substitution herefor, irrespective
of whether or not any notation thereof is made upon this Security or such other Securities.
Defaults and Remedies
.
Certain events of bankruptcy or insolvency are Events of Default that will result in the
principal amount of the Securities, together with premium, if any, and accrued and unpaid
A-7
interest thereon, becoming due and payable immediately upon the occurrence of such Events of
Default. If any other Event of Default with respect to the Securities occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities then Outstanding may declare the principal amount of all the Securities,
together with premium, if any, and accrued and unpaid interest thereon, to be due and payable
immediately in the manner and with the effect provided in the Indenture. Notwithstanding the
preceding sentence, however, if at any time after such a declaration of acceleration has been made,
the Holders of a majority in principal amount of the Outstanding Securities, by written notice to
the Trustee, may rescind such declaration and annul its consequences if the rescission would not
conflict with any judgment or decree of a court already rendered and if all Events of Default with
respect to the Securities, other than the nonpayment of the principal, premium, if any, or interest
which has become due solely by such declaration acceleration, shall have been cured or shall have
been waived. No such rescission shall affect any subsequent default or shall impair any right
consequent thereon. Holders of Securities may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity or security satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then Outstanding may direct the Trustee in
its exercise of any trust or power with respect to the Securities.
Trustee Dealings with Company
.
The Trustee under the Indenture, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its Affiliates or any subsidiary of
the Companys Affiliates, and may otherwise deal with the Company or its Affiliates as if it were
not the Trustee.
Authentication
.
This Security shall not be valid until the Trustee signs the certificate of authentication on
the other side of this Security.
Abbreviations and Defined Terms
.
Customary abbreviations may be used in the name of a Holder of a Security or an assignee, such
as: TEN COM (tenant in common), TEN ENT (tenants by the entireties), JT TEN (joint tenants with
right of survivorship and not as tenants in common), CUST (Custodian), and U/G/M/A (Uniform Gifts
to Minors Act).
CUSIP Numbers
.
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Securities as a convenience
to the Holders of the Securities. No representation is made as to the accuracy of such number as
printed on the Securities and reliance may be placed only on the other identification numbers
printed hereon.
A-8
Absolute Obligation
.
No reference herein to the Indenture and no provision of this Security or the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Security in the manner, at the respective
times, at the rate and in the coin or currency herein prescribed.
No Recourse
.
The general partner of the Parent Guarantor and its directors, officers, employees and
members, as such, shall have no liability for any obligations of any Guarantor or the Issuer under
the Securities, the Indenture or any Guarantee or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting the Securities waives and
releases all such liability. The waiver and release are part of the consideration for issuance of
the Securities.
Governing Law
.
This Security shall be construed in accordance with and governed by the laws of the State of
New York.
Guarantee
.
The Securities are fully and unconditionally guaranteed on an unsecured, unsubordinated basis
by the Parent Guarantor as set forth in Article XIV of the Indenture, as noted in the Notation of
Guarantee to this Security, and under certain circumstances set forth in the Original Indenture one
or more Subsidiaries of the Parent Guarantor may be required to join in such guarantee.
Reliance
.
The Holder, by accepting this Security, acknowledges and affirms that (i) it has purchased the
Security in reliance upon the separateness of Parent Guarantor and the general partner of Parent
Guarantor from each other and from any other Persons, including EPCO, Inc., and (ii) Parent
Guarantor and the general partner of Parent Guarantor have assets and liabilities that are separate
from those of other Persons, including EPCO, Inc.
A-9
NOTATION OF GUARANTEE
The Parent Guarantor (which term includes any successor Person under the Indenture), has
fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture, the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities and all other amounts due and payable under the
Indenture and the Securities by the Company.
The obligations of the Parent Guarantor to the Holders of Securities and to the Trustee
pursuant to its Guarantee and the Indenture are expressly set forth in Article XIV of the Indenture
and reference is hereby made to the Indenture for the precise terms of the Guarantee.
|
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|
ENTERPRISE PRODUCTS PARTNERS L.P.
|
|
|
By:
|
Enterprise Products GP, LLC,
|
|
|
|
its General Partner
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
W. Randall Fowler
|
|
|
|
Title:
|
Executive Vice President and
Chief Financial Officer
|
|
A-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:
|
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|
TEN COM
|
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|
as tenants in common
|
|
UNIF GIFT MIN ACT
|
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(Cust.)
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TEN ENT
|
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|
as tenants by entireties
|
|
Custodian for:
|
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(Minor)
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under Uniform Gifts to
|
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|
JT TEN
|
|
|
|
as joint tenants with right
of survivorship and not as tenants in
common
|
|
Minors Act of
|
|
(State)
|
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Please print or type name and address including postal zip code of assignee
the within Security and all rights thereunder, hereby irrevocably constituting and appointing
to transfer said Security on the books of the Company, with full power of substitution in the
premises.
A-11
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
*
The following increases or decreases in this Global Security have been made:
|
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Amount of
|
|
Amount of
|
|
Principal Amount
|
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|
Decrease in
|
|
Increase in
|
|
of this Global
|
|
Signature of
|
|
|
Principal
|
|
Principal Amount
|
|
Security following
|
|
authorized officer
|
|
|
Amount of this
|
|
of this
|
|
such decrease
|
|
of Trustee or
|
Date of Exchange
|
|
Global Security
|
|
Global Security
|
|
(or increase)
|
|
Depositary
|
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*
|
|
To be included in a Book-Entry Note.
|
A-12
Exhibit B
FORM OF NOTE
[
FACE OF SECURITY
]
[
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC) (55 WATER STREET, NEW YORK, NEW YORK 10041) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
]
*
[
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO HEREIN.
]
*
Principal Amount
No.
$
[
which amount may be
increased or decreased by the Schedule
of Increases and Decreases in Global Security attached hereto.
]
*
ENTERPRISE PRODUCTS OPERATING LLC
6.125% SENIOR NOTE DUE 2013
CUSIP
ENTERPRISE PRODUCTS OPERATING LLC, a Texas limited liability company (the Company, which
term includes any successor under the Indenture hereinafter referred to), for value received,
hereby promises to pay to
[
Cede & Co.
]
*
or its registered assigns, the principal sum of
($
) U.S. dollars,
[
or such greater or lesser principal sum as is shown
on the attached Schedule of Increases and Decreases in Global Security
]
*
, on February 1,
2013 in such coin and currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest at an annual rate of
6.125% payable on February 1 and August 1 of each year, to the person in
|
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|
*
|
|
To be included in a Book-Entry Note.
|
B-1
whose name the Security (as defined on the reverse side of this security) is registered at the
close of business on the record date for such interest, which shall be the preceding January 15 and
July 15 (each, a Regular Record Date), respectively, payable commencing on February 1, 2010, with
interest accruing from and including August 1, 2009, or from and including the most recent date to
which interest shall have been paid.
Reference is made to the further provisions of this Security set forth on the reverse hereof.
Such further provisions shall for all purposes have the same effect as though fully set forth at
this place.
The statements in the legends set forth in this Security are an integral part of the terms of
this Security and by acceptance hereof the Holder of this Security agrees to be subject to, and
bound by, the terms and provisions set forth in each such legend.
This Security is issued in respect of a series of Debt Securities of an initial aggregate of
$182,560,000 in principal amount designated as the 6.125% Senior Notes due 2013 of the Company and
is governed by the Indenture dated as of October 4, 2004 (the Original Indenture), duly executed
and delivered by the Company, as issuer, and Enterprise Products Partners L.P., as parent guarantor
(the Parent Guarantor), to Wells Fargo Bank, National Association, as trustee (the Trustee), as
amended by the Tenth Supplemental Indenture, dated as of June 30, 2007, providing for the Company
as the successor issuer (the Tenth Supplemental Indenture), and the Seventeenth Supplemental
Indenture dated as of October 27, 2009, duly executed by the Company, the Parent Guarantor and the
Trustee (the Seventeenth Supplemental Indenture, and together with the Original Indenture and the
Tenth Supplemental Indenture, the Indenture). The terms of the Indenture are incorporated herein
by reference. This Security shall in all respects be entitled to the same benefits as definitive
Debt Securities under the Indenture.
If and to the extent any provision of the Indenture limits, qualifies or conflicts with any
other provision of the Indenture that is required to be included in the Indenture or is deemed
applicable to the Indenture by virtue of the provisions of the Trust Indenture Act of 1939, as
amended (the TIA), such required provision shall control.
The Company hereby irrevocably undertakes to the Holder hereof to exchange this Security in
accordance with the terms of the Indenture without charge.
This Security shall not be valid or become obligatory for any purpose until the Trustees
Certificate of Authentication hereon shall have been manually signed by the Trustee under the
Indenture.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by its sole
manager.
Dated: October 27, 2009
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ENTERPRISE PRODUCTS OPERATING LLC
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By:
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Enterprise Products OLPGP, Inc.,
its sole manager
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By:
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Name: W. Randall Fowler
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Title: Executive Vice President and
Chief Financial Officer
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TRUSTEES CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated herein referred to in the
within-mentioned Indenture.
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
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as Trustee
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By:
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Authorized Signatory
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B-3
[
REVERSE OF SECURITY
]
ENTERPRISE PRODUCTS OPERATING LLC
6.125% SENIOR NOTE DUE 2013
This Security is one of a duly authorized issue of debentures, notes or other evidences of
indebtedness of the Company (the Debt Securities) of the series hereinafter specified, all issued
or to be issued under and pursuant to the Indenture, to which Indenture reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company, the Parent Guarantor and the Holders of the Debt
Securities. The Debt Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times, may bear interest (if
any) at different rates, may be subject to different sinking, purchase or analogous funds (if any)
and may otherwise vary as provided in the Indenture. This Security is one of a series designated
as the 6.125% Senior Notes due 2013 of the Company, in initial aggregate principal amount of
$182,560,000 (the Securities).
Interest
.
The Company promises to pay interest on the principal amount of this Security at the rate of
6.125% per annum.
The Company will pay interest semi-annually on February 1 and August 1 of each year (each an
Interest Payment Date), commencing February 1, 2010. Interest on the Securities will accrue from
and including the most recent date to which interest has been paid or, if no interest has been paid
on the Securities, from and including August 1, 2009. Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months. The Company shall pay interest (including
post-petition interest in any proceeding under any applicable bankruptcy laws) on overdue
installments of interest (without regard to any applicable grace period) and on overdue principal
and premium, if any, from time to time on demand at the same rate per annum, in each case to the
extent lawful.
Method of Payment
.
The Company shall pay interest on the Securities (except Defaulted Interest) to the persons
who are the registered Holders at the close of business on the Regular Record Date immediately
preceding the Interest Payment Date. Any such interest not so punctually paid or duly provided for
(Defaulted Interest) may be paid to the persons who are registered Holders at the close of
business on a special record date for the payment of such Defaulted Interest, or in any other
lawful manner not inconsistent with the requirements of any securities exchange on which such
Securities may then be listed if such manner of payment shall be deemed practicable by the Trustee,
as more fully provided in the Indenture. The Company shall pay principal, premium, if any, and
interest in such coin or currency of the United States of America as at the time of payment shall
be legal tender for payment of public and private debts. Payments in respect of a Global Security
(including principal, premium, if any, and interest) will be made by wire transfer of immediately
available funds to the accounts specified by the Depositary. Payments in respect of Securities in
definitive form (including principal, premium, if any, and
B-4
interest) will be made at the office or agency of the Company maintained for such purpose
within The City of New York, which initially will be the corporate trust office of Wells Fargo
Bank, National Association at 45 Broadway, 14th Floor, New York, New York 10006, or, at the option
of the Company, payment of interest may be made by check mailed to the Holders on the relevant
record date at their addresses set forth in the Debt Security Register of Holders or at the option
of the Holder, payment of interest on Securities in definitive form will be made by wire transfer
of immediately available funds to any account maintained in the United States, provided such Holder
has requested such method of payment and provided timely wire transfer instructions to the paying
agent. The Holder must surrender this Security to a paying agent to collect payment of principal.
Paying Agent and Registrar
.
Initially, Wells Fargo Bank, National Association will act as paying agent and Registrar. The
Company may change any paying agent or Registrar at any time upon notice to the Trustee and the
Holders. The Company may act as paying agent.
Indenture
.
This Security is one of a duly authorized issue of Debt Securities of the Company issued and
to be issued in one or more series under the Indenture.
Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein.
The terms of the Securities include those stated in the Original Indenture, those made part of the
Indenture by reference to the TIA, as in effect on the date of the Original Indenture, and those
terms stated in the Seventeenth Supplemental Indenture. The Securities are subject to all such
terms, and Holders of Securities are referred to the Original Indenture, the Seventeenth
Supplemental Indenture and the TIA for a statement of them. The Securities of this series are
general unsecured obligations of the Company limited to an initial aggregate principal amount of
$182,560,000;
provided, however
, that the authorized aggregate principal amount of such series may
be increased from time to time as provided in the Seventeenth Supplemental Indenture.
Optional Redemption
.
The Securities are redeemable, at the option of the Company, at any time in whole, or from
time to time in part, at a redemption price (the Make-Whole Price) equal to the greater of:
(i) 100% of the principal amount of the Securities to be redeemed; or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest (at the rate in effect on the
date of calculation of the redemption price) on the Securities to be redeemed (exclusive of
interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the applicable Treasury Yield plus
35 basis points; plus, in either case, accrued interest to the Redemption Date.
B-5
The actual Make-Whole Price, calculated as provided above, shall be calculated and certified
to the Trustee and the Company by the Independent Investment Banker. For purposes of determining
the Make-Whole Price, the following definitions are applicable:
Treasury Yield means, with respect to any Redemption Date applicable to the Securities, the
rate per annum equal to the semi-annual equivalent yield to maturity (computed as of the third
Business Day immediately preceding such Redemption Date) of the Comparable Treasury Issue, assuming
a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal
to the applicable Comparable Treasury Price for the Redemption Date.
Comparable Treasury Issue means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining terms of the Securities to be redeemed;
provided, however,
that if no
maturity is within three months before or after the maturity date for the Securities, yields for
the two published maturities most closely corresponding to such United States Treasury security
will be determined and the treasury rate will be interpolated or extrapolated from those yields on
a straight line basis rounding to the nearest month.
Independent Investment Banker means any of Citigroup Global Markets Inc., J.P. Morgan
Securities Inc., UBS Securities LLC and Wachovia Capital Markets, LLC and their respective
successors, or, if no such firm is willing and able to select the applicable Comparable Treasury
Issue, an independent investment banking institution of national standing appointed by the Trustee
and reasonably acceptable to the Company.
Comparable Treasury Price means, with respect to any Redemption Date, (a) the average of the
Reference Treasury Dealer Quotations for the Redemption Date, after excluding the highest and
lowest Reference Treasury Dealer Quotations, or (b) if the Independent Investment Banker obtains
fewer than five Reference Treasury Dealer Quotations, the average of all such quotations.
Reference Treasury Dealer means (a) each of Citigroup Global Markets Inc., J.P. Morgan
Securities Inc., UBS Securities LLC and Wachovia Capital Markets, LLC and their respective
successors, and (b) one other primary U.S. government securities dealer in New York City selected
by the Independent Investment Banker (each, a Primary Treasury Dealer);
provided
,
however
, that
if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company will substitute
therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date for the Securities, an average, as determined by an Independent Investment
Banker, of the bid and asked prices for the Comparable Treasury Issue for the Securities (expressed
in each case as a percentage of its principal amount) quoted in writing to an Independent
Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
B-6
Except as set forth above, the Securities will not be redeemable prior to their Stated
Maturity and will not be entitled to the benefit of any sinking fund.
Securities called for optional redemption become due on the Redemption Date. Notices of
optional redemption will be mailed at least 30 but not more than 60 days before the Redemption Date
to each Holder of the Securities to be redeemed at its registered address. The notice of optional
redemption for the Securities will state, among other things, the amount of Securities to be
redeemed, the Redemption Date, the method of calculating such redemption price and the place(s)
that payment will be made upon presentation and surrender of Securities to be redeemed. Unless the
Company defaults in payment of the redemption price, interest will cease to accrue on the
Redemption Date with respect to any Securities that have been called for optional redemption. If
less than all the Securities are redeemed at any time, the Trustee will select the Securities to be
redeemed on a pro rata basis or by any other method the Trustee deems fair and appropriate.
The Securities may be redeemed in part in multiplies of $1,000 only. Any such redemption will
also comply with Article III of the Indenture.
Denominations; Transfer; Exchange
.
The Securities are to be issued in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000 in excess thereof. A Holder may register the transfer of,
or exchange, Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture.
Person Deemed Owners
.
The registered Holder of a Security may be treated as the owner of it for all purposes.
Amendment; Supplement; Waiver
.
Subject to certain exceptions, the Indenture may be amended or supplemented, and any existing
Event of Default or compliance with any provision may be waived, with the consent of the Holders of
a majority in principal amount of the Outstanding Debt Securities of each series affected. Without
consent of any Holder of a Security, the parties thereto may amend or supplement the Indenture to,
among other things, cure any ambiguity or omission, to correct any defect or inconsistency, or to
make any other change that does not adversely affect the rights of any Holder of a Security. Any
such consent or waiver by the Holder of this Security (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and owners of this
Security and any Securities which may be issued in exchange or substitution herefor, irrespective
of whether or not any notation thereof is made upon this Security or such other Securities.
Defaults and Remedies
.
Certain events of bankruptcy or insolvency are Events of Default that will result in the
principal amount of the Securities, together with premium, if any, and accrued and unpaid
B-7
interest thereon, becoming due and payable immediately upon the occurrence of such Events of
Default. If any other Event of Default with respect to the Securities occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities then Outstanding may declare the principal amount of all the Securities,
together with premium, if any, and accrued and unpaid interest thereon, to be due and payable
immediately in the manner and with the effect provided in the Indenture. Notwithstanding the
preceding sentence, however, if at any time after such a declaration of acceleration has been made,
the Holders of a majority in principal amount of the Outstanding Securities, by written notice to
the Trustee, may rescind such declaration and annul its consequences if the rescission would not
conflict with any judgment or decree of a court already rendered and if all Events of Default with
respect to the Securities, other than the nonpayment of the principal, premium, if any, or interest
which has become due solely by such declaration acceleration, shall have been cured or shall have
been waived. No such rescission shall affect any subsequent default or shall impair any right
consequent thereon. Holders of Securities may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity or security satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then Outstanding may direct the Trustee in
its exercise of any trust or power with respect to the Securities.
Trustee Dealings with Company
.
The Trustee under the Indenture, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its Affiliates or any subsidiary of
the Companys Affiliates, and may otherwise deal with the Company or its Affiliates as if it were
not the Trustee.
Authentication
.
This Security shall not be valid until the Trustee signs the certificate of authentication on
the other side of this Security.
Abbreviations and Defined Terms
.
Customary abbreviations may be used in the name of a Holder of a Security or an assignee, such
as: TEN COM (tenant in common), TEN ENT (tenants by the entireties), JT TEN (joint tenants with
right of survivorship and not as tenants in common), CUST (Custodian), and U/G/M/A (Uniform Gifts
to Minors Act).
CUSIP Numbers
.
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Securities as a convenience
to the Holders of the Securities. No representation is made as to the accuracy of such number as
printed on the Securities and reliance may be placed only on the other identification numbers
printed hereon.
B-8
Absolute Obligation
.
No reference herein to the Indenture and no provision of this Security or the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Security in the manner, at the respective
times, at the rate and in the coin or currency herein prescribed.
No Recourse
.
The General Partner and the general partner of the Parent Guarantor and their respective
directors, officers, employees and members, as such, shall have no liability for any obligations of
any Guarantor or the Issuer under the Securities, the Indenture or any Guarantee or for any claim
based on, in respect of, or by reason of, such obligations or their creation. Each Holder by
accepting the Securities waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Securities.
Governing Law
.
This Security shall be construed in accordance with and governed by the laws of the State of
New York.
Guarantee
.
The Securities are fully and unconditionally guaranteed on an unsecured, unsubordinated basis
by the Parent Guarantor as set forth in Article XIV of the Indenture, as noted in the Notation of
Guarantee to this Security, and under certain circumstances set forth in the Original Indenture one
or more Subsidiaries of the Parent Guarantor may be required to join in such guarantee.
Reliance
.
The Holder, by accepting this Security, acknowledges and affirms that (i) it has purchased the
Security in reliance upon the separateness of Parent Guarantor and the general partner of Parent
Guarantor from each other and from any other Persons, including EPCO, Inc., and (ii) Parent
Guarantor and the general partner of Parent Guarantor have assets and liabilities that are separate
from those of other Persons, including EPCO, Inc.
B-9
NOTATION OF GUARANTEE
The Parent Guarantor (which term includes any successor Person under the Indenture), has
fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture, the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities and all other amounts due and payable under the
Indenture and the Securities by the Company.
The obligations of the Parent Guarantor to the Holders of Securities and to the Trustee
pursuant to its Guarantee and the Indenture are expressly set forth in Article XIV of the Indenture
and reference is hereby made to the Indenture for the precise terms of the Guarantee.
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ENTERPRISE PRODUCTS PARTNERS L.P.
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By:
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Enterprise Products GP, LLC,
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its General Partner
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By:
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Name:
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W. Randall Fowler
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Title:
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Executive Vice President and
Chief Financial Officer
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B-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:
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TEN COM
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as tenants in common
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UNIF GIFT MIN ACT
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(Cust.)
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TEN ENT
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as tenants by entireties
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Custodian for:
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(Minor)
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JT TEN
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as joint tenants with right
of survivorship and not as tenants in
common
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under Uniform Gifts to
Minors Act of
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(State)
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Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Please print or type name and address including postal zip code of assignee
the within Security and all rights thereunder, hereby irrevocably constituting and appointing
to transfer said Security on the books of the Company, with full power of substitution in the premises.
B-11
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
*
The following increases or decreases in this Global Security have been made:
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Amount of
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Amount of
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Principal Amount
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Decrease in
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Increase in
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of this Global
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Signature of
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Principal
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Principal Amount of
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Security following
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authorized officer
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Amount of this
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this
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such decrease
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of Trustee or
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Date of Exchange
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Global Security
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Global Security
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(or increase)
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Depositary
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*
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To be included in a Book-Entry Note.
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B-12
Exhibit C
FORM OF NOTE
[
FACE OF SECURITY
]
[
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC) (55 WATER STREET, NEW YORK, NEW YORK 10041) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
]
*
[
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO HEREIN.
]
*
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Principal Amount
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No.
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$
[
which amount may be
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increased or decreased by the Schedule
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of Increases and Decreases in Global Security attached hereto.
]
*
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ENTERPRISE PRODUCTS OPERATING LLC
5.90% SENIOR NOTE DUE 2013
CUSIP
ENTERPRISE PRODUCTS OPERATING LLC, a Texas limited liability company (the Company, which
term includes any successor under the Indenture hereinafter referred to), for value received,
hereby promises to pay to
[
Cede & Co.
]
*
or its registered assigns, the principal sum of
($
) U.S. dollars,
[
or such greater or lesser principal sum as is shown
on the attached Schedule of Increases and Decreases in Global Security
]
*
, on April 15,
2013 in such coin and currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest at an annual rate of
5.90% payable on April 15 and October 15 of each year, to the person in whose
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*
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To be included in a Book-Entry Note.
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C-1
name the Security (as defined on the reverse side of this security) is registered at the close
of business on the record date for such interest, which shall be the preceding April 1 and October
1 (each, a Regular Record Date), respectively, payable commencing on April 15, 2010, with
interest accruing from and including October 15, 2009, or from and including the most recent date
to which interest shall have been paid.
Reference is made to the further provisions of this Security set forth on the reverse hereof.
Such further provisions shall for all purposes have the same effect as though fully set forth at
this place.
The statements in the legends set forth in this Security are an integral part of the terms of
this Security and by acceptance hereof the Holder of this Security agrees to be subject to, and
bound by, the terms and provisions set forth in each such legend.
This Security is issued in respect of a series of Debt Securities of an initial aggregate of
$237,600,000 in principal amount designated as the 5.90% Senior Notes due 2013 of the Company and
is governed by the Indenture dated as of October 4, 2004 (the Original Indenture), duly executed
and delivered by the Company, as issuer, and Enterprise Products Partners L.P., as parent guarantor
(the Parent Guarantor), to Wells Fargo Bank, National Association, as trustee (the Trustee), as
amended by the Tenth Supplemental Indenture, dated as of June 30, 2007, providing for the Company
as the successor issuer (the Tenth Supplemental Indenture), and the Seventeenth Supplemental
Indenture dated as of October 27, 2009, duly executed by the Company, the Parent Guarantor and the
Trustee (the Seventeenth Supplemental Indenture, and together with the Original Indenture and the
Tenth Supplemental Indenture, the Indenture). The terms of the Indenture are incorporated herein
by reference. This Security shall in all respects be entitled to the same benefits as definitive
Debt Securities under the Indenture.
If and to the extent any provision of the Indenture limits, qualifies or conflicts with any
other provision of the Indenture that is required to be included in the Indenture or is deemed
applicable to the Indenture by virtue of the provisions of the Trust Indenture Act of 1939, as
amended (the TIA), such required provision shall control.
The Company hereby irrevocably undertakes to the Holder hereof to exchange this Security in
accordance with the terms of the Indenture without charge.
This Security shall not be valid or become obligatory for any purpose until the Trustees
Certificate of Authentication hereon shall have been manually signed by the Trustee under the
Indenture.
C-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by its sole
manager.
Dated: October 27, 2009
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ENTERPRISE PRODUCTS OPERATING LLC
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By:
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Enterprise Products OLPGP, Inc.,
its sole manager
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By:
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Name: W. Randall Fowler
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Title: Executive Vice President and
Chief Financial Officer
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TRUSTEES CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated herein referred to in the
within-mentioned Indenture.
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
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By:
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Authorized Signatory
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C-3
[
REVERSE OF SECURITY
]
ENTERPRISE PRODUCTS OPERATING LLC
5.90% SENIOR NOTE DUE 2013
This Security is one of a duly authorized issue of debentures, notes or other evidences of
indebtedness of the Company (the Debt Securities) of the series hereinafter specified, all issued
or to be issued under and pursuant to the Indenture, to which Indenture reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company, the Parent Guarantor and the Holders of the Debt
Securities. The Debt Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times, may bear interest (if
any) at different rates, may be subject to different sinking, purchase or analogous funds (if any)
and may otherwise vary as provided in the Indenture. This Security is one of a series designated
as the 5.90% Senior Notes due 2013 of the Company, in initial aggregate principal amount of
$237,600,000 (the Securities).
Interest
.
The Company promises to pay interest on the principal amount of this Security at the rate of
5.90% per annum.
The Company will pay interest semi-annually on April 15 and October 15 of each year (each an
Interest Payment Date), commencing April 15, 2010. Interest on the Securities will accrue from
and including the most recent date to which interest has been paid or, if no interest has been paid
on the Securities, from and including October 15, 2009. Interest will be computed on the basis of
a 360-day year consisting of twelve 30-day months. The Company shall pay interest (including
post-petition interest in any proceeding under any applicable bankruptcy laws) on overdue
installments of interest (without regard to any applicable grace period) and on overdue principal
and premium, if any, from time to time on demand at the same rate per annum, in each case to the
extent lawful.
Method of Payment
.
The Company shall pay interest on the Securities (except Defaulted Interest) to the persons
who are the registered Holders at the close of business on the Regular Record Date immediately
preceding the Interest Payment Date. Any such interest not so punctually paid or duly provided for
(Defaulted Interest) may be paid to the persons who are registered Holders at the close of
business on a special record date for the payment of such Defaulted Interest, or in any other
lawful manner not inconsistent with the requirements of any securities exchange on which such
Securities may then be listed if such manner of payment shall be deemed practicable by the Trustee,
as more fully provided in the Indenture. The Company shall pay principal, premium, if any, and
interest in such coin or currency of the United States of America as at the time of payment shall
be legal tender for payment of public and private debts. Payments in respect of a Global Security
(including principal, premium, if any, and interest) will be made by wire transfer of immediately
available funds to the accounts specified by the Depositary. Payments in respect of Securities in
definitive form (including principal, premium, if any, and
C-4
interest) will be made at the office or agency of the Company maintained for such purpose
within The City of New York, which initially will be the corporate trust office of Wells Fargo
Bank, National Association at 45 Broadway, 14th Floor, New York, New York 10006, or, at the option
of the Company, payment of interest may be made by check mailed to the Holders on the relevant
record date at their addresses set forth in the Debt Security Register of Holders or at the option
of the Holder, payment of interest on Securities in definitive form will be made by wire transfer
of immediately available funds to any account maintained in the United States, provided such Holder
has requested such method of payment and provided timely wire transfer instructions to the paying
agent. The Holder must surrender this Security to a paying agent to collect payment of principal.
Paying Agent and Registrar
.
Initially, Wells Fargo Bank, National Association will act as paying agent and Registrar. The
Company may change any paying agent or Registrar at any time upon notice to the Trustee and the
Holders. The Company may act as paying agent.
Indenture
.
This Security is one of a duly authorized issue of Debt Securities of the Company issued and
to be issued in one or more series under the Indenture.
Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein.
The terms of the Securities include those stated in the Original Indenture, those made part of the
Indenture by reference to the TIA, as in effect on the date of the Original Indenture, and those
terms stated in the Seventeenth Supplemental Indenture. The Securities are subject to all such
terms, and Holders of Securities are referred to the Original Indenture, the Seventeenth
Supplemental Indenture and the TIA for a statement of them. The Securities of this series are
general unsecured obligations of the Company limited to an initial aggregate principal amount of
$237,600,000;
provided, however
, that the authorized aggregate principal amount of such series may
be increased from time to time as provided in the Seventeenth Supplemental Indenture.
Optional Redemption
.
The Securities are redeemable, at the option of the Company, at any time in whole, or from
time to time in part, at a redemption price (the Make-Whole Price) equal to the greater of: (i)
100% of the principal amount of the Securities to be redeemed; or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest (at the rate in effect on the
date of calculation of the redemption price) on the Securities to be redeemed (exclusive of
interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the applicable Treasury Yield plus
50 basis points; plus, in either case, accrued interest to the Redemption Date.
C-5
The actual Make-Whole Price, calculated as provided above, shall be calculated and certified
to the Trustee and the Company by the Independent Investment Banker. For purposes of determining
the Make-Whole Price, the following definitions are applicable:
Treasury Yield means, with respect to any Redemption Date applicable to the Securities, the
rate per annum equal to the semi-annual equivalent yield to maturity (computed as of the third
Business Day immediately preceding such Redemption Date) of the Comparable Treasury Issue, assuming
a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal
to the applicable Comparable Treasury Price for the Redemption Date.
Comparable Treasury Issue means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining terms of the Securities to be redeemed;
provided, however,
that if no
maturity is within three months before or after the maturity date for the Securities, yields for
the two published maturities most closely corresponding to such United States Treasury security
will be determined and the treasury rate will be interpolated or extrapolated from those yields on
a straight line basis rounding to the nearest month.
Independent Investment Banker means any of Citigroup Global Markets Inc., J.P. Morgan
Securities Inc., UBS Securities LLC and Wachovia Capital Markets, LLC and their respective
successors, or, if no such firm is willing and able to select the applicable Comparable Treasury
Issue, an independent investment banking institution of national standing appointed by the Trustee
and reasonably acceptable to the Company.
Comparable Treasury Price means, with respect to any Redemption Date, (a) the average of the
Reference Treasury Dealer Quotations for the Redemption Date, after excluding the highest and
lowest Reference Treasury Dealer Quotations, or (b) if the Independent Investment Banker obtains
fewer than five Reference Treasury Dealer Quotations, the average of all such quotations.
Reference Treasury Dealer means (a) each of Citigroup Global Markets Inc., J.P. Morgan
Securities Inc., UBS Securities LLC and Wachovia Capital Markets, LLC and their respective
successors, and (b) one other primary U.S. government securities dealer in New York City selected
by the Independent Investment Banker (each, a Primary Treasury Dealer);
provided
,
however
, that
if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company will substitute
therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date for the Securities, an average, as determined by an Independent Investment
Banker, of the bid and asked prices for the Comparable Treasury Issue for the Securities (expressed
in each case as a percentage of its principal amount) quoted in writing to an Independent
Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
C-6
Except as set forth above, the Securities will not be redeemable prior to their Stated
Maturity and will not be entitled to the benefit of any sinking fund.
Securities called for optional redemption become due on the Redemption Date. Notices of
optional redemption will be mailed at least 30 but not more than 60 days before the Redemption Date
to each Holder of the Securities to be redeemed at its registered address. The notice of optional
redemption for the Securities will state, among other things, the amount of Securities to be
redeemed, the Redemption Date, the method of calculating such redemption price and the place(s)
that payment will be made upon presentation and surrender of Securities to be redeemed. Unless the
Company defaults in payment of the redemption price, interest will cease to accrue on the
Redemption Date with respect to any Securities that have been called for optional redemption. If
less than all the Securities are redeemed at any time, the Trustee will select the Securities to be
redeemed on a pro rata basis or by any other method the Trustee deems fair and appropriate.
The Securities may be redeemed in part in multiplies of $1,000 only. Any such redemption will
also comply with Article III of the Indenture.
Denominations; Transfer; Exchange
.
The Securities are to be issued in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000 in excess thereof. A Holder may register the transfer of,
or exchange, Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture.
Person Deemed Owners
.
The registered Holder of a Security may be treated as the owner of it for all purposes.
Amendment; Supplement; Waiver
.
Subject to certain exceptions, the Indenture may be amended or supplemented, and any existing
Event of Default or compliance with any provision may be waived, with the consent of the Holders of
a majority in principal amount of the Outstanding Debt Securities of each series affected. Without
consent of any Holder of a Security, the parties thereto may amend or supplement the Indenture to,
among other things, cure any ambiguity or omission, to correct any defect or inconsistency, or to
make any other change that does not adversely affect the rights of any Holder of a Security. Any
such consent or waiver by the Holder of this Security (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and owners of this
Security and any Securities which may be issued in exchange or substitution herefor, irrespective
of whether or not any notation thereof is made upon this Security or such other Securities.
Defaults and Remedies
.
Certain events of bankruptcy or insolvency are Events of Default that will result in the
principal amount of the Securities, together with premium, if any, and accrued and unpaid
C-7
interest thereon, becoming due and payable immediately upon the occurrence of such Events of
Default. If any other Event of Default with respect to the Securities occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities then Outstanding may declare the principal amount of all the Securities,
together with premium, if any, and accrued and unpaid interest thereon, to be due and payable
immediately in the manner and with the effect provided in the Indenture. Notwithstanding the
preceding sentence, however, if at any time after such a declaration of acceleration has been made,
the Holders of a majority in principal amount of the Outstanding Securities, by written notice to
the Trustee, may rescind such declaration and annul its consequences if the rescission would not
conflict with any judgment or decree of a court already rendered and if all Events of Default with
respect to the Securities, other than the nonpayment of the principal, premium, if any, or interest
which has become due solely by such declaration acceleration, shall have been cured or shall have
been waived. No such rescission shall affect any subsequent default or shall impair any right
consequent thereon. Holders of Securities may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity or security satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then Outstanding may direct the Trustee in
its exercise of any trust or power with respect to the Securities.
Trustee Dealings with Company
.
The Trustee under the Indenture, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its Affiliates or any subsidiary of
the Companys Affiliates, and may otherwise deal with the Company or its Affiliates as if it were
not the Trustee.
Authentication
.
This Security shall not be valid until the Trustee signs the certificate of authentication on
the other side of this Security.
Abbreviations and Defined Terms
.
Customary abbreviations may be used in the name of a Holder of a Security or an assignee, such
as: TEN COM (tenant in common), TEN ENT (tenants by the entireties), JT TEN (joint tenants with
right of survivorship and not as tenants in common), CUST (Custodian), and U/G/M/A (Uniform Gifts
to Minors Act).
CUSIP Numbers
.
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Securities as a convenience
to the Holders of the Securities. No representation is made as to the accuracy of such number as
printed on the Securities and reliance may be placed only on the other identification numbers
printed hereon.
C-8
Absolute Obligation
.
No reference herein to the Indenture and no provision of this Security or the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Security in the manner, at the respective
times, at the rate and in the coin or currency herein prescribed.
No Recourse
.
The General Partner and the general partner of the Parent Guarantor and their respective
directors, officers, employees and members, as such, shall have no liability for any obligations of
any Guarantor or the Issuer under the Securities, the Indenture or any Guarantee or for any claim
based on, in respect of, or by reason of, such obligations or their creation. Each Holder by
accepting the Securities waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Securities.
Governing Law
.
This Security shall be construed in accordance with and governed by the laws of the State of
New York.
Guarantee
.
The Securities are fully and unconditionally guaranteed on an unsecured, unsubordinated basis
by the Parent Guarantor as set forth in Article XIV of the Indenture, as noted in the Notation of
Guarantee to this Security, and under certain circumstances set forth in the Original Indenture one
or more Subsidiaries of the Parent Guarantor may be required to join in such guarantee.
Reliance
.
The Holder, by accepting this Security, acknowledges and affirms that (i) it has purchased the
Security in reliance upon the separateness of Parent Guarantor and the general partner of Parent
Guarantor from each other and from any other Persons, including EPCO, Inc., and (ii) Parent
Guarantor and the general partner of Parent Guarantor have assets and liabilities that are separate
from those of other Persons, including EPCO, Inc.
C-9
NOTATION OF GUARANTEE
The Parent Guarantor (which term includes any successor Person under the Indenture), has
fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture, the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities and all other amounts due and payable under the
Indenture and the Securities by the Company.
The obligations of the Parent Guarantor to the Holders of Securities and to the Trustee
pursuant to its Guarantee and the Indenture are expressly set forth in Article XIV of the Indenture
and reference is hereby made to the Indenture for the precise terms of the Guarantee.
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ENTERPRISE PRODUCTS PARTNERS L.P.
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By:
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Enterprise Products GP, LLC,
its General Partner
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By:
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Name:
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W. Randall Fowler
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Title:
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Executive Vice President and
Chief Financial Officer
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C-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:
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TEN COM
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as tenants in common
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UNIF GIFT MIN ACT
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(Cust.)
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TEN ENT
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as tenants by entireties
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Custodian for:
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(Minor)
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under Uniform Gifts to
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JT TEN
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as joint tenants with right
of survivorship and not as tenants in
common
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Minors Act of
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(State)
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Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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Please print or type name and address including postal zip code of assignee
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the within Security and all rights thereunder, hereby irrevocably constituting and appointing
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to transfer said Security on the books of the Company, with full power of substitution in the
premises.
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C-11
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
*
The following increases or decreases in this Global Security have been made:
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Amount of
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Amount of
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Principal Amount
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Decrease in
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Increase in
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of this Global
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Signature of
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Principal
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Principal Amount
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Security following
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authorized officer
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Amount of this
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of this
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such decrease
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of Trustee or
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Date of Exchange
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Global Security
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Global Security
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(or increase)
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Depositary
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To be included in a Book-Entry Note.
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C-12
Exhibit D
FORM OF NOTE
[
FACE OF SECURITY
]
[
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC) (55 WATER STREET, NEW YORK, NEW YORK 10041) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
]
*
[
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO HEREIN.
]
*
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Principal Amount
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No.
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$
[
which amount may be
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increased or decreased by the Schedule
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of Increases and Decreases in Global Security attached hereto.
]
*
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ENTERPRISE PRODUCTS OPERATING LLC
6.65% SENIOR NOTE DUE 2018
CUSIP
ENTERPRISE PRODUCTS OPERATING LLC, a Texas limited liability company (the Company, which
term includes any successor under the Indenture hereinafter referred to), for value received,
hereby promises to pay to
[
Cede & Co.
]
*
or its registered assigns, the principal sum of
($
) U.S. dollars,
[
or such greater or lesser principal sum as is shown
on the attached Schedule of Increases and Decreases in Global Security
]
*
, on April 15,
2018 in such coin and currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest at an annual rate of
6.65% payable on April 15 and October 15 of each year, to the person in whose
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*
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To be included in a Book-Entry Note.
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D-1
name the Security (as defined on the reverse side of this security) is registered at the close
of business on the record date for such interest, which shall be the preceding April 1 and October
1 (each, a Regular Record Date), respectively, payable commencing on April 15, 2010, with
interest accruing from and including October 15, 2009, or from and including the most recent date
to which interest shall have been paid.
Reference is made to the further provisions of this Security set forth on the reverse hereof.
Such further provisions shall for all purposes have the same effect as though fully set forth at
this place.
The statements in the legends set forth in this Security are an integral part of the terms of
this Security and by acceptance hereof the Holder of this Security agrees to be subject to, and
bound by, the terms and provisions set forth in each such legend.
This Security is issued in respect of a series of Debt Securities of an initial aggregate of
$349,690,000 in principal amount designated as the 6.65% Senior Notes due 2018 of the Company and
is governed by the Indenture dated as of October 4, 2004 (the Original Indenture), duly executed
and delivered by the Company, as issuer, and Enterprise Products Partners L.P., as parent guarantor
(the Parent Guarantor), to Wells Fargo Bank, National Association, as trustee (the Trustee), as
amended by the Tenth Supplemental Indenture, dated as of June 30, 2007, providing for the Company
as the successor issuer (the Tenth Supplemental Indenture), and the Seventeenth Supplemental
Indenture dated as of October 27, 2009, duly executed by the Company, the Parent Guarantor and the
Trustee (the Seventeenth Supplemental Indenture, and together with the Original Indenture and the
Tenth Supplemental Indenture, the Indenture). The terms of the Indenture are incorporated herein
by reference. This Security shall in all respects be entitled to the same benefits as definitive
Debt Securities under the Indenture.
If and to the extent any provision of the Indenture limits, qualifies or conflicts with any
other provision of the Indenture that is required to be included in the Indenture or is deemed
applicable to the Indenture by virtue of the provisions of the Trust Indenture Act of 1939, as
amended (the TIA), such required provision shall control.
The Company hereby irrevocably undertakes to the Holder hereof to exchange this Security in
accordance with the terms of the Indenture without charge.
This Security shall not be valid or become obligatory for any purpose until the Trustees
Certificate of Authentication hereon shall have been manually signed by the Trustee under the
Indenture.
D-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by its sole
manager.
Dated: October 27, 2009
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ENTERPRISE PRODUCTS OPERATING LLC
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By:
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Enterprise Products OLPGP, Inc.,
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its sole manager
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By:
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Name:
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W. Randall Fowler
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Title:
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Executive Vice President and
Chief Financial Officer
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TRUSTEES CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated herein referred to in the
within-mentioned Indenture.
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
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By:
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Authorized Signatory
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D-3
[
REVERSE OF SECURITY
]
ENTERPRISE PRODUCTS OPERATING LLC
6.65% SENIOR NOTE DUE 2018
This Security is one of a duly authorized issue of debentures, notes or other evidences of
indebtedness of the Company (the Debt Securities) of the series hereinafter specified, all issued
or to be issued under and pursuant to the Indenture, to which Indenture reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company, the Parent Guarantor and the Holders of the Debt
Securities. The Debt Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times, may bear interest (if
any) at different rates, may be subject to different sinking, purchase or analogous funds (if any)
and may otherwise vary as provided in the Indenture. This Security is one of a series designated
as the 6.65% Senior Notes due 2018 of the Company, in initial aggregate principal amount of
$349,690,000 (the Securities).
Interest
.
The Company promises to pay interest on the principal amount of this Security at the rate of
6.65% per annum.
The Company will pay interest semi-annually on April 15 and October 15 of each year (each an
Interest Payment Date), commencing April 15, 2010. Interest on the Securities will accrue from
and including the most recent date to which interest has been paid or, if no interest has been paid
on the Securities, from and including October 15, 2009. Interest will be computed on the basis of
a 360-day year consisting of twelve 30-day months. The Company shall pay interest (including
post-petition interest in any proceeding under any applicable bankruptcy laws) on overdue
installments of interest (without regard to any applicable grace period) and on overdue principal
and premium, if any, from time to time on demand at the same rate per annum, in each case to the
extent lawful.
Method of Payment
.
The Company shall pay interest on the Securities (except Defaulted Interest) to the persons
who are the registered Holders at the close of business on the Regular Record Date immediately
preceding the Interest Payment Date. Any such interest not so punctually paid or duly provided for
(Defaulted Interest) may be paid to the persons who are registered Holders at the close of
business on a special record date for the payment of such Defaulted Interest, or in any other
lawful manner not inconsistent with the requirements of any securities exchange on which such
Securities may then be listed if such manner of payment shall be deemed practicable by the Trustee,
as more fully provided in the Indenture. The Company shall pay principal, premium, if any, and
interest in such coin or currency of the United States of America as at the time of payment shall
be legal tender for payment of public and private debts. Payments in respect of a Global Security
(including principal, premium, if any, and interest) will be made by wire transfer of immediately
available funds to the accounts specified by the Depositary. Payments in respect of Securities in
definitive form (including principal, premium, if any, and
D-4
interest) will be made at the office or agency of the Company maintained for such purpose
within The City of New York, which initially will be the corporate trust office of Wells Fargo
Bank, National Association at 45 Broadway, 14th Floor, New York, New York 10006, or, at the option
of the Company, payment of interest may be made by check mailed to the Holders on the relevant
record date at their addresses set forth in the Debt Security Register of Holders or at the option
of the Holder, payment of interest on Securities in definitive form will be made by wire transfer
of immediately available funds to any account maintained in the United States, provided such Holder
has requested such method of payment and provided timely wire transfer instructions to the paying
agent. The Holder must surrender this Security to a paying agent to collect payment of principal.
Paying Agent and Registrar
.
Initially, Wells Fargo Bank, National Association will act as paying agent and Registrar. The
Company may change any paying agent or Registrar at any time upon notice to the Trustee and the
Holders. The Company may act as paying agent.
Indenture
.
This Security is one of a duly authorized issue of Debt Securities of the Company issued and
to be issued in one or more series under the Indenture.
Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein.
The terms of the Securities include those stated in the Original Indenture, those made part of the
Indenture by reference to the TIA, as in effect on the date of the Original Indenture, and those
terms stated in the Seventeenth Supplemental Indenture. The Securities are subject to all such
terms, and Holders of Securities are referred to the Original Indenture, the Seventeenth
Supplemental Indenture and the TIA for a statement of them. The Securities of this series are
general unsecured obligations of the Company limited to an initial aggregate principal amount of
$349,690,000;
provided, however
, that the authorized aggregate principal amount of such series may
be increased from time to time as provided in the Seventeenth Supplemental Indenture.
Optional Redemption
.
The Securities are redeemable, at the option of the Company, at any time in whole, or from
time to time in part, at a redemption price (the Make-Whole Price) equal to the greater of:
(i) 100% of the principal amount of the Securities to be redeemed; or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest (at the rate in effect on the
date of calculation of the redemption price) on the Securities to be redeemed (exclusive of
interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the applicable Treasury Yield plus
50 basis points; plus, in either case, accrued interest to the Redemption Date.
D-5
The actual Make-Whole Price, calculated as provided above, shall be calculated and certified
to the Trustee and the Company by the Independent Investment Banker. For purposes of determining
the Make-Whole Price, the following definitions are applicable:
Treasury Yield means, with respect to any Redemption Date applicable to the Securities, the
rate per annum equal to the semi-annual equivalent yield to maturity (computed as of the third
Business Day immediately preceding such Redemption Date) of the Comparable Treasury Issue, assuming
a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal
to the applicable Comparable Treasury Price for the Redemption Date.
Comparable Treasury Issue means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining terms of the Securities to be redeemed;
provided, however,
that if no
maturity is within three months before or after the maturity date for the Securities, yields for
the two published maturities most closely corresponding to such United States Treasury security
will be determined and the treasury rate will be interpolated or extrapolated from those yields on
a straight line basis rounding to the nearest month.
Independent Investment Banker means any of Citigroup Global Markets Inc., J.P. Morgan
Securities Inc., UBS Securities LLC and Wachovia Capital Markets, LLC and their respective
successors, or, if no such firm is willing and able to select the applicable Comparable Treasury
Issue, an independent investment banking institution of national standing appointed by the Trustee
and reasonably acceptable to the Company.
Comparable Treasury Price means, with respect to any Redemption Date, (a) the average of the
Reference Treasury Dealer Quotations for the Redemption Date, after excluding the highest and
lowest Reference Treasury Dealer Quotations, or (b) if the Independent Investment Banker obtains
fewer than five Reference Treasury Dealer Quotations, the average of all such quotations.
Reference Treasury Dealer means (a) each of Citigroup Global Markets Inc., J.P. Morgan
Securities Inc., UBS Securities LLC and Wachovia Capital Markets, LLC and their respective
successors, and (b) one other primary U.S. government securities dealer in New York City selected
by the Independent Investment Banker (each, a Primary Treasury Dealer);
provided
,
however
, that
if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company will substitute
therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date for the Securities, an average, as determined by an Independent Investment
Banker, of the bid and asked prices for the Comparable Treasury Issue for the Securities (expressed
in each case as a percentage of its principal amount) quoted in writing to an Independent
Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
D-6
Except as set forth above, the Securities will not be redeemable prior to their Stated
Maturity and will not be entitled to the benefit of any sinking fund.
Securities called for optional redemption become due on the Redemption Date. Notices of
optional redemption will be mailed at least 30 but not more than 60 days before the Redemption Date
to each Holder of the Securities to be redeemed at its registered address. The notice of optional
redemption for the Securities will state, among other things, the amount of Securities to be
redeemed, the Redemption Date, the method of calculating such redemption price and the place(s)
that payment will be made upon presentation and surrender of Securities to be redeemed. Unless the
Company defaults in payment of the redemption price, interest will cease to accrue on the
Redemption Date with respect to any Securities that have been called for optional redemption. If
less than all the Securities are redeemed at any time, the Trustee will select the Securities to be
redeemed on a pro rata basis or by any other method the Trustee deems fair and appropriate.
The Securities may be redeemed in part in multiplies of $1,000 only. Any such redemption will
also comply with Article III of the Indenture.
Denominations; Transfer; Exchange
.
The Securities are to be issued in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000 in excess thereof. A Holder may register the transfer of,
or exchange, Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture.
Person Deemed Owners
.
The registered Holder of a Security may be treated as the owner of it for all purposes.
Amendment; Supplement; Waiver
.
Subject to certain exceptions, the Indenture may be amended or supplemented, and any existing
Event of Default or compliance with any provision may be waived, with the consent of the Holders of
a majority in principal amount of the Outstanding Debt Securities of each series affected. Without
consent of any Holder of a Security, the parties thereto may amend or supplement the Indenture to,
among other things, cure any ambiguity or omission, to correct any defect or inconsistency, or to
make any other change that does not adversely affect the rights of any Holder of a Security. Any
such consent or waiver by the Holder of this Security (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and owners of this
Security and any Securities which may be issued in exchange or substitution herefor, irrespective
of whether or not any notation thereof is made upon this Security or such other Securities.
Defaults and Remedies
.
Certain events of bankruptcy or insolvency are Events of Default that will result in the
principal amount of the Securities, together with premium, if any, and accrued and unpaid
D-7
interest thereon, becoming due and payable immediately upon the occurrence of such Events of
Default. If any other Event of Default with respect to the Securities occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities then Outstanding may declare the principal amount of all the Securities,
together with premium, if any, and accrued and unpaid interest thereon, to be due and payable
immediately in the manner and with the effect provided in the Indenture. Notwithstanding the
preceding sentence, however, if at any time after such a declaration of acceleration has been made,
the Holders of a majority in principal amount of the Outstanding Securities, by written notice to
the Trustee, may rescind such declaration and annul its consequences if the rescission would not
conflict with any judgment or decree of a court already rendered and if all Events of Default with
respect to the Securities, other than the nonpayment of the principal, premium, if any, or interest
which has become due solely by such declaration acceleration, shall have been cured or shall have
been waived. No such rescission shall affect any subsequent default or shall impair any right
consequent thereon. Holders of Securities may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity or security satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then Outstanding may direct the Trustee in
its exercise of any trust or power with respect to the Securities.
Trustee Dealings with Company
.
The Trustee under the Indenture, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its Affiliates or any subsidiary of
the Companys Affiliates, and may otherwise deal with the Company or its Affiliates as if it were
not the Trustee.
Authentication
.
This Security shall not be valid until the Trustee signs the certificate of authentication on
the other side of this Security.
Abbreviations and Defined Terms
.
Customary abbreviations may be used in the name of a Holder of a Security or an assignee, such
as: TEN COM (tenant in common), TEN ENT (tenants by the entireties), JT TEN (joint tenants with
right of survivorship and not as tenants in common), CUST (Custodian), and U/G/M/A (Uniform Gifts
to Minors Act).
CUSIP Numbers
.
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Securities as a convenience
to the Holders of the Securities. No representation is made as to the accuracy of such number as
printed on the Securities and reliance may be placed only on the other identification numbers
printed hereon.
D-8
Absolute Obligation
.
No reference herein to the Indenture and no provision of this Security or the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Security in the manner, at the respective
times, at the rate and in the coin or currency herein prescribed.
No Recourse
.
The General Partner and the general partner of the Parent Guarantor and their respective
directors, officers, employees and members, as such, shall have no liability for any obligations of
any Guarantor or the Issuer under the Securities, the Indenture or any Guarantee or for any claim
based on, in respect of, or by reason of, such obligations or their creation. Each Holder by
accepting the Securities waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Securities.
Governing Law
.
This Security shall be construed in accordance with and governed by the laws of the State of
New York.
Guarantee
.
The Securities are fully and unconditionally guaranteed on an unsecured, unsubordinated basis
by the Parent Guarantor as set forth in Article XIV of the Indenture, as noted in the Notation of
Guarantee to this Security, and under certain circumstances set forth in the Original Indenture one
or more Subsidiaries of the Parent Guarantor may be required to join in such guarantee.
Reliance
.
The Holder, by accepting this Security, acknowledges and affirms that (i) it has purchased the
Security in reliance upon the separateness of Parent Guarantor and the general partner of Parent
Guarantor from each other and from any other Persons, including EPCO, Inc., and (ii) Parent
Guarantor and the general partner of Parent Guarantor have assets and liabilities that are separate
from those of other Persons, including EPCO, Inc.
D-9
NOTATION OF GUARANTEE
The Parent Guarantor (which term includes any successor Person under the Indenture), has
fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture, the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities and all other amounts due and payable under the
Indenture and the Securities by the Company.
The obligations of the Parent Guarantor to the Holders of Securities and to the Trustee
pursuant to its Guarantee and the Indenture are expressly set forth in Article XIV of the Indenture
and reference is hereby made to the Indenture for the precise terms of the Guarantee.
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ENTERPRISE PRODUCTS PARTNERS L.P.
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By:
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Enterprise Products GP, LLC,
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its General Partner
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By:
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Name:
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W. Randall Fowler
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Title:
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Executive Vice President and
Chief Financial Officer
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D-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:
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TEN COM
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as tenants in common
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UNIF GIFT MIN ACT
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(Cust.)
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TEN ENT
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as tenants by entireties
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Custodian for:
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(Minor)
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under Uniform Gifts to
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JT TEN
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as joint tenants with right
of survivorship and not as tenants in
common
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Minors Act of
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(State)
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Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Please print or type name and address including postal zip code of assignee
the within Security and all rights thereunder, hereby irrevocably constituting and appointing
to transfer said Security on the books of the Company, with full power of substitution in the
premises.
D-11
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
*
The following increases or decreases in this Global Security have been made:
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Amount of
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Amount of
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Principal Amount
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Decrease in
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Increase in
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of this Global
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Signature of
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Principal
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Principal Amount
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Security following
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authorized officer
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Amount of this
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of this
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such decrease
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of Trustee or
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Date of Exchange
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Global Security
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Global Security
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(or increase)
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Depositary
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*
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To be included in a Book-Entry Note.
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D-12
Exhibit E
FORM OF NOTE
[
FACE OF SECURITY
]
[
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC) (55 WATER STREET, NEW YORK, NEW YORK 10041) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
]
*
[
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO HEREIN.
]
*
Principal Amount
No. _____
$
[
which amount may be
increased or decreased by the Schedule
of Increases and Decreases in Global Security attached hereto.
]
*
ENTERPRISE PRODUCTS OPERATING LLC
7.55% SENIOR NOTE DUE 2038
CUSIP
ENTERPRISE PRODUCTS OPERATING LLC, a Texas limited liability company (the Company, which
term includes any successor under the Indenture hereinafter referred to), for value received,
hereby promises to pay to
[
Cede & Co.
]
*
or its registered assigns, the principal sum of
($___) U.S. dollars,
[
or such greater or lesser principal sum as is shown
on the attached Schedule of Increases and Decreases in Global Security
]
*
, on April 15,
2038 in such coin and currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest at an annual rate of
7.55% payable on April 15 and October 15 of each year, to the person in whose
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To be included in a Book-Entry Note.
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E-1
name the Security (as defined on the reverse side of this security) is registered at the close
of business on the record date for such interest, which shall be the preceding April 1 and October
1 (each, a Regular Record Date), respectively, payable commencing on April 15, 2010, with
interest accruing from and including October 15, 2009, or from and including the most recent date
to which interest shall have been paid.
Reference is made to the further provisions of this Security set forth on the reverse hereof.
Such further provisions shall for all purposes have the same effect as though fully set forth at
this place.
The statements in the legends set forth in this Security are an integral part of the terms of
this Security and by acceptance hereof the Holder of this Security agrees to be subject to, and
bound by, the terms and provisions set forth in each such legend.
This Security is issued in respect of a series of Debt Securities of an initial aggregate of
$399,575,000 in principal amount designated as the 7.55% Senior Notes due 2038 of the Company and
is governed by the Indenture dated as of October 4, 2004 (the Original Indenture), duly executed
and delivered by the Company, as issuer, and Enterprise Products Partners L.P., as parent guarantor
(the Parent Guarantor), to Wells Fargo Bank, National Association, as trustee (the Trustee), as
amended by the Tenth Supplemental Indenture, dated as of June 30, 2007, providing for the Company
as the successor issuer (the Tenth Supplemental Indenture), and the Seventeenth Supplemental
Indenture dated as of October 27, 2009, duly executed by the Company, the Parent Guarantor and the
Trustee (the Seventeenth Supplemental Indenture, and together with the Original Indenture and the
Tenth Supplemental Indenture, the Indenture). The terms of the Indenture are incorporated herein
by reference. This Security shall in all respects be entitled to the same benefits as definitive
Debt Securities under the Indenture.
If and to the extent any provision of the Indenture limits, qualifies or conflicts with any
other provision of the Indenture that is required to be included in the Indenture or is deemed
applicable to the Indenture by virtue of the provisions of the Trust Indenture Act of 1939, as
amended (the TIA), such required provision shall control.
The Company hereby irrevocably undertakes to the Holder hereof to exchange this Security in
accordance with the terms of the Indenture without charge.
This Security shall not be valid or become obligatory for any purpose until the Trustees
Certificate of Authentication hereon shall have been manually signed by the Trustee under the
Indenture.
E-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by its sole
manager.
Dated: October 27, 2009
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ENTERPRISE PRODUCTS OPERATING LLC
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By:
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Enterprise Products OLPGP, Inc.,
its sole manager
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By:
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Name: W. Randall Fowler
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Title: Executive Vice President and
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Chief Financial Officer
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TRUSTEES CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated herein referred to in the
within-mentioned Indenture.
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
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By:
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Authorized Signatory
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E-3
[
REVERSE OF SECURITY
]
ENTERPRISE PRODUCTS OPERATING LLC
7.55% SENIOR NOTE DUE 2038
This Security is one of a duly authorized issue of debentures, notes or other evidences of
indebtedness of the Company (the Debt Securities) of the series hereinafter specified, all issued
or to be issued under and pursuant to the Indenture, to which Indenture reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company, the Parent Guarantor and the Holders of the Debt
Securities. The Debt Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times, may bear interest (if
any) at different rates, may be subject to different sinking, purchase or analogous funds (if any)
and may otherwise vary as provided in the Indenture. This Security is one of a series designated
as the 7.55% Senior Notes due 2038 of the Company, in initial aggregate principal amount of
$399,575,000 (the Securities).
Interest
.
The Company promises to pay interest on the principal amount of this Security at the rate of
7.55% per annum.
The Company will pay interest semi-annually on April 15 and October 15 of each year (each an
Interest Payment Date), commencing April 15, 2010. Interest on the Securities will accrue from
and including the most recent date to which interest has been paid or, if no interest has been paid
on the Securities, from and including October 15, 2009. Interest will be computed on the basis of
a 360-day year consisting of twelve 30-day months. The Company shall pay interest (including
post-petition interest in any proceeding under any applicable bankruptcy laws) on overdue
installments of interest (without regard to any applicable grace period) and on overdue principal
and premium, if any, from time to time on demand at the same rate per annum, in each case to the
extent lawful.
Method of Payment
.
The Company shall pay interest on the Securities (except Defaulted Interest) to the persons
who are the registered Holders at the close of business on the Regular Record Date immediately
preceding the Interest Payment Date. Any such interest not so punctually paid or duly provided for
(Defaulted Interest) may be paid to the persons who are registered Holders at the close of
business on a special record date for the payment of such Defaulted Interest, or in any other
lawful manner not inconsistent with the requirements of any securities exchange on which such
Securities may then be listed if such manner of payment shall be deemed practicable by the Trustee,
as more fully provided in the Indenture. The Company shall pay principal, premium, if any, and
interest in such coin or currency of the United States of America as at the time of payment shall
be legal tender for payment of public and private debts. Payments in respect of a Global Security
(including principal, premium, if any, and interest) will be made by wire transfer of immediately
available funds to the accounts specified by the Depositary. Payments in respect of Securities in
definitive form (including principal, premium, if any, and
E-4
interest) will be made at the office or agency of the Company maintained for such purpose
within The City of New York, which initially will be the corporate trust office of Wells Fargo
Bank, National Association at 45 Broadway, 14th Floor, New York, New York 10006, or, at the option
of the Company, payment of interest may be made by check mailed to the Holders on the relevant
record date at their addresses set forth in the Debt Security Register of Holders or at the option
of the Holder, payment of interest on Securities in definitive form will be made by wire transfer
of immediately available funds to any account maintained in the United States, provided such Holder
has requested such method of payment and provided timely wire transfer instructions to the paying
agent. The Holder must surrender this Security to a paying agent to collect payment of principal.
Paying Agent and Registrar
.
Initially, Wells Fargo Bank, National Association will act as paying agent and Registrar. The
Company may change any paying agent or Registrar at any time upon notice to the Trustee and the
Holders. The Company may act as paying agent.
Indenture
.
This Security is one of a duly authorized issue of Debt Securities of the Company issued and
to be issued in one or more series under the Indenture.
Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein.
The terms of the Securities include those stated in the Original Indenture, those made part of the
Indenture by reference to the TIA, as in effect on the date of the Original Indenture, and those
terms stated in the Seventeenth Supplemental Indenture. The Securities are subject to all such
terms, and Holders of Securities are referred to the Original Indenture, the Seventeenth
Supplemental Indenture and the TIA for a statement of them. The Securities of this series are
general unsecured obligations of the Company limited to an initial aggregate principal amount of
$399,575,000;
provided, however
, that the authorized aggregate principal amount of such series may
be increased from time to time as provided in the Seventeenth Supplemental Indenture.
Optional Redemption
.
The Securities are redeemable, at the option of the Company, at any time in whole, or from
time to time in part, at a redemption price (the Make-Whole Price) equal to the greater of: (i)
100% of the principal amount of the Securities to be redeemed; or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest (at the rate in effect on the
date of calculation of the redemption price) on the Securities to be redeemed (exclusive of
interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the applicable Treasury Yield plus
50 basis points; plus, in either case, accrued interest to the Redemption Date.
E-5
The actual Make-Whole Price, calculated as provided above, shall be calculated and certified
to the Trustee and the Company by the Independent Investment Banker. For purposes of determining
the Make-Whole Price, the following definitions are applicable:
Treasury Yield means, with respect to any Redemption Date applicable to the Securities, the
rate per annum equal to the semi-annual equivalent yield to maturity (computed as of the third
Business Day immediately preceding such Redemption Date) of the Comparable Treasury Issue, assuming
a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal
to the applicable Comparable Treasury Price for the Redemption Date.
Comparable Treasury Issue means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining terms of the Securities to be redeemed;
provided, however,
that if no
maturity is within three months before or after the maturity date for the Securities, yields for
the two published maturities most closely corresponding to such United States Treasury security
will be determined and the treasury rate will be interpolated or extrapolated from those yields on
a straight line basis rounding to the nearest month.
Independent Investment Banker means any of Citigroup Global Markets Inc., J.P. Morgan
Securities Inc., UBS Securities LLC and Wachovia Capital Markets, LLC and their respective
successors, or, if no such firm is willing and able to select the applicable Comparable Treasury
Issue, an independent investment banking institution of national standing appointed by the Trustee
and reasonably acceptable to the Company.
Comparable Treasury Price means, with respect to any Redemption Date, (a) the average of the
Reference Treasury Dealer Quotations for the Redemption Date, after excluding the highest and
lowest Reference Treasury Dealer Quotations, or (b) if the Independent Investment Banker obtains
fewer than five Reference Treasury Dealer Quotations, the average of all such quotations.
Reference Treasury Dealer means (a) each of Citigroup Global Markets Inc., J.P. Morgan
Securities Inc., UBS Securities LLC and Wachovia Capital Markets, LLC and their respective
successors, and (b) one other primary U.S. government securities dealer in New York City selected
by the Independent Investment Banker (each, a Primary Treasury Dealer);
provided
,
however
, that
if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company will substitute
therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date for the Securities, an average, as determined by an Independent Investment
Banker, of the bid and asked prices for the Comparable Treasury Issue for the Securities (expressed
in each case as a percentage of its principal amount) quoted in writing to an Independent
Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
E-6
Except as set forth above, the Securities will not be redeemable prior to their Stated
Maturity and will not be entitled to the benefit of any sinking fund.
Securities called for optional redemption become due on the Redemption Date. Notices of
optional redemption will be mailed at least 30 but not more than 60 days before the Redemption Date
to each Holder of the Securities to be redeemed at its registered address. The notice of optional
redemption for the Securities will state, among other things, the amount of Securities to be
redeemed, the Redemption Date, the method of calculating such redemption price and the place(s)
that payment will be made upon presentation and surrender of Securities to be redeemed. Unless the
Company defaults in payment of the redemption price, interest will cease to accrue on the
Redemption Date with respect to any Securities that have been called for optional redemption. If
less than all the Securities are redeemed at any time, the Trustee will select the Securities to be
redeemed on a pro rata basis or by any other method the Trustee deems fair and appropriate.
The Securities may be redeemed in part in multiplies of $1,000 only. Any such redemption will
also comply with Article III of the Indenture.
Denominations; Transfer; Exchange
.
The Securities are to be issued in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000 in excess thereof. A Holder may register the transfer of,
or exchange, Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture.
Person Deemed Owners
.
The registered Holder of a Security may be treated as the owner of it for all purposes.
Amendment; Supplement; Waiver
.
Subject to certain exceptions, the Indenture may be amended or supplemented, and any existing
Event of Default or compliance with any provision may be waived, with the consent of the Holders of
a majority in principal amount of the Outstanding Debt Securities of each series affected. Without
consent of any Holder of a Security, the parties thereto may amend or supplement the Indenture to,
among other things, cure any ambiguity or omission, to correct any defect or inconsistency, or to
make any other change that does not adversely affect the rights of any Holder of a Security. Any
such consent or waiver by the Holder of this Security (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and owners of this
Security and any Securities which may be issued in exchange or substitution herefor, irrespective
of whether or not any notation thereof is made upon this Security or such other Securities.
Defaults and Remedies
.
Certain events of bankruptcy or insolvency are Events of Default that will result in the
principal amount of the Securities, together with premium, if any, and accrued and unpaid
E-7
interest thereon, becoming due and payable immediately upon the occurrence of such Events of
Default. If any other Event of Default with respect to the Securities occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities then Outstanding may declare the principal amount of all the Securities,
together with premium, if any, and accrued and unpaid interest thereon, to be due and payable
immediately in the manner and with the effect provided in the Indenture. Notwithstanding the
preceding sentence, however, if at any time after such a declaration of acceleration has been made,
the Holders of a majority in principal amount of the Outstanding Securities, by written notice to
the Trustee, may rescind such declaration and annul its consequences if the rescission would not
conflict with any judgment or decree of a court already rendered and if all Events of Default with
respect to the Securities, other than the nonpayment of the principal, premium, if any, or interest
which has become due solely by such declaration acceleration, shall have been cured or shall have
been waived. No such rescission shall affect any subsequent default or shall impair any right
consequent thereon. Holders of Securities may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity or security satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then Outstanding may direct the Trustee in
its exercise of any trust or power with respect to the Securities.
Trustee Dealings with Company
.
The Trustee under the Indenture, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its Affiliates or any subsidiary of
the Companys Affiliates, and may otherwise deal with the Company or its Affiliates as if it were
not the Trustee.
Authentication
.
This Security shall not be valid until the Trustee signs the certificate of authentication on
the other side of this Security.
Abbreviations and Defined Terms
.
Customary abbreviations may be used in the name of a Holder of a Security or an assignee, such
as: TEN COM (tenant in common), TEN ENT (tenants by the entireties), JT TEN (joint tenants with
right of survivorship and not as tenants in common), CUST (Custodian), and U/G/M/A (Uniform Gifts
to Minors Act).
CUSIP Numbers
.
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Securities as a convenience
to the Holders of the Securities. No representation is made as to the accuracy of such number as
printed on the Securities and reliance may be placed only on the other identification numbers
printed hereon.
E-8
Absolute Obligation
.
No reference herein to the Indenture and no provision of this Security or the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Security in the manner, at the respective
times, at the rate and in the coin or currency herein prescribed.
No Recourse
.
The General Partner and the general partner of the Parent Guarantor and their respective
directors, officers, employees and members, as such, shall have no liability for any obligations of
any Guarantor or the Issuer under the Securities, the Indenture or any Guarantee or for any claim
based on, in respect of, or by reason of, such obligations or their creation. Each Holder by
accepting the Securities waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Securities.
Governing Law
.
This Security shall be construed in accordance with and governed by the laws of the State of
New York.
Guarantee
.
The Securities are fully and unconditionally guaranteed on an unsecured, unsubordinated basis
by the Parent Guarantor as set forth in Article XIV of the Indenture, as noted in the Notation of
Guarantee to this Security, and under certain circumstances set forth in the Original Indenture one
or more Subsidiaries of the Parent Guarantor may be required to join in such guarantee.
Reliance
.
The Holder, by accepting this Security, acknowledges and affirms that (i) it has purchased the
Security in reliance upon the separateness of Parent Guarantor and the general partner of Parent
Guarantor from each other and from any other Persons, including EPCO, Inc., and (ii) Parent
Guarantor and the general partner of Parent Guarantor have assets and liabilities that are separate
from those of other Persons, including EPCO, Inc.
E-9
NOTATION OF GUARANTEE
The Parent Guarantor (which term includes any successor Person under the Indenture), has
fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture, the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities and all other amounts due and payable under the
Indenture and the Securities by the Company.
The obligations of the Parent Guarantor to the Holders of Securities and to the Trustee
pursuant to its Guarantee and the Indenture are expressly set forth in Article XIV of the Indenture
and reference is hereby made to the Indenture for the precise terms of the Guarantee.
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ENTERPRISE PRODUCTS PARTNERS L.P.
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By:
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Enterprise Products GP, LLC,
its General Partner
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By:
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Name:
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W. Randall Fowler
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Title:
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Executive Vice President and
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Chief Financial Officer
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E-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:
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TEN COM
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as tenants in common
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UNIF GIFT MIN ACT
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(Cust.)
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TEN ENT
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as tenants by entireties
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Custodian for:
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(Minor)
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JT TEN
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as joint tenants with right
of survivorship and not as tenants in
common
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under Uniform Gifts to
Minors
Act of
(State)
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Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Please print or type name and address including postal zip code of assignee
the within Security and all rights thereunder, hereby irrevocably constituting and appointing
to transfer said Security on the books of the Company, with full power of substitution in the
premises.
E-11
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
*
The following increases or decreases in this Global Security have been made:
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Amount of
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Amount of
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Principal Amount
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Decrease in
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Increase in
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of this Global
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Signature of
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Principal
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Principal Amount
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Security following
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authorized officer
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Amount of this
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of this
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such decrease
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of Trustee or
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Date of Exchange
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Global Security
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Global Security
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(or increase)
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Depositary
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*
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To be included in a Book-Entry Note.
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E-12
Exhibit 4.2
ENTERPRISE PRODUCTS OPERATING LLC,
as Issuer
ENTERPRISE PRODUCTS PARTNERS L.P.,
as Parent Guarantor
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
EIGHTEENTH SUPPLEMENTAL INDENTURE
Dated as of October 27, 2009
to
Indenture dated as of October 4, 2004
7.000% FIXED /FLOATING RATE JUNIOR SUBORDINATED NOTES DUE 2067
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
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1
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Section 1.1 Definition of Terms
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1
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Section 1.2 Rules of Construction
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6
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ARTICLE II GENERAL TERMS AND CONDITIONS OF THE NOTES
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6
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Section 2.1 Designation and Principal Amount
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7
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Section 2.2 Maturity
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7
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Section 2.3 Form
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7
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Section 2.4 Registrar and Paying Agent
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7
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Section 2.5 Transfer and Exchange
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7
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Section 2.6 Interest Rates; Payment of Principal and Interest
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7
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ARTICLE III REDEMPTION OF THE NOTES
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8
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Section 3.1 Optional Redemption
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8
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Section 3.2 Certain Redemption Procedures
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9
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Section 3.3 No Sinking Fund
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9
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ARTICLE IV DEFERRAL OF INTEREST
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9
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Section 4.1 Optional Deferral of Interest
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9
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Section 4.2 Notice of Deferrals
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9
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ARTICLE V CERTAIN COVENANTS
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10
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Section 5.1 Covenants in Indenture
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10
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Section 5.2 Restricted Payments
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10
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ARTICLE VI SUBORDINATION
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11
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Section 6.1 Ranking of the Notes
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11
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Section 6.2 Amendment and Restatement of Section 12.02 of the Base Indenture
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11
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Section 6.3 Amendment and Restatement of Section 12.03 of the Base Indenture
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12
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ARTICLE VII GUARANTEE OF THE NOTES
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13
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Section 7.1 Guarantee of the Notes
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13
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Section 7.2 Ranking of the Guarantee
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13
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ARTICLE VIII APPLICABILITY OF DEFEASANCE AND COVENANT DEFEASANCE
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14
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Section 8.1 Applicability of Defeasance and Covenant Defeasance
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14
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ARTICLE IX EVENTS OF DEFAULT AND REMEDIES OF THE TRUSTEE AND HOLDERS OF NOTES
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14
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Section 9.1 Amendment and Restatement of Section 6.01 of the Base Indenture
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14
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ARTICLE X MISCELLANEOUS
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15
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Section 10.1 Ratification of Base Indenture
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15
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Section 10.2 No Recourse to General Partner
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15
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Section 10.3 Separateness
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15
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Section 10.4 Trustee Not Responsible for Recitals
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15
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Section 10.5 Governing Law
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15
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Section 10.6 Time is of the Essence
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15
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Section 10.7 Separability
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15
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Section 10.8 Treatment of the Notes
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16
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Section 10.9 Counterparts
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16
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Section 10.10 Withholding
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16
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EXHIBIT A Form of Note
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A-1
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i
THIS EIGHTEENTH SUPPLEMENTAL INDENTURE, dated as of October 27, 2009 (this
Eighteenth
Supplemental Indenture
), is among (i) Enterprise Products Operating LLC, a Texas limited
liability company (the
Company
), (ii) Enterprise Products Partners L.P., a Delaware
limited partnership (the
Parent Guarantor
), and (iii) Wells Fargo Bank, National
Association, a national banking association, as trustee (the
Trustee
).
W I
T N E S S E T H
:
WHEREAS, Enterprise Products Operating L.P. and the Parent Guarantor have executed and
delivered to the Trustee an Indenture, dated as of October 4, 2004 (the
Original
Indenture
), providing for the issuance by Enterprise Products Operating L.P. from time to time
of its debentures, notes, bonds or other evidences of indebtedness, issued and to be issued in one
or more series unlimited as to principal amount (the
Debt Securities
);
WHEREAS, the Company and the Parent Guarantor have executed and delivered to the Trustee a
Tenth Supplemental Indenture, dated as of June 30, 2007, providing for the Company as the successor
issuer (the Original Indenture together with the Tenth Supplemental Indenture, the
Base
Indenture
);
WHEREAS, on or before the date hereof the Company has issued several series of Debt Securities
pursuant to previous supplements to the Base Indenture;
WHEREAS, the Company has duly authorized and desires to cause to be issued pursuant to the
Base Indenture and this Eighteenth Supplemental Indenture a new series of Debt Securities
designated the 7.000% Fixed/Floating Rate Junior Subordinated Notes due 2067 (the
Notes
), all of such Notes to be guaranteed by the Parent Guarantor as provided in Article
XIV of the Base Indenture and Article VII of this Eighteenth Supplemental Indenture;
WHEREAS, the Company desires to cause the issuance of the Notes pursuant to Sections 2.01 and
2.03 of the Base Indenture, which sections permit the execution of indentures supplemental thereto
to establish the form and terms of Debt Securities of any series;
WHEREAS, pursuant to Section 9.01 of the Base Indenture, the Company and the Parent Guarantor
have requested that the Trustee join in the execution of this Eighteenth Supplemental Indenture to
establish the form and terms of the Notes; and
WHEREAS, all things necessary have been done to make the Notes, when executed by the Company
and authenticated and delivered hereunder and under the Base Indenture and duly issued by the
Company, and the guarantee thereof by the Parent Guarantor, when the Notes have been duly issued by
the Company, the valid obligations of the Company and the Parent Guarantor, respectively, and to
make this Eighteenth Supplemental Indenture a valid agreement of the Company and the Parent
Guarantor, enforceable against them in accordance with its terms;
NOW, THEREFORE, the Company, the Parent Guarantor and the Trustee hereby agree that the
following provisions shall amend and supplement the Base Indenture:
ARTICLE I
DEFINITIONS
Section 1.1
Definition of Terms
. Unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same meaning when used in this Eighteenth
Supplemental Indenture;
provided
,
however
, that, where a term is defined both in
this Eighteenth Supplemental Indenture and in the Base Indenture the meaning given to such term in
this Eighteenth Supplemental Indenture shall
control for purposes of this Eighteenth Supplemental Indenture and, in respect of the Notes,
but not any other series of Debt Securities, the Base Indenture;
(b) a term defined anywhere in this Eighteenth Supplemental Indenture has the same meaning
throughout this Eighteenth Supplemental Indenture and, in respect of the Notes, but not any other
series of Debt Securities, the Base Indenture;
(c) any term used herein which is defined in the TIA, either directly or by reference therein,
has the meanings assigned to it therein; and
(d) the following terms have the following respective meanings:
Bankruptcy Event
means, with respect to any Person, that (a) such Person, pursuant
to or within the meaning of any Bankruptcy Law, (i) commences a voluntary case; (ii) consents to
the entry of an order for relief against it in an involuntary case; (iii) consents to the
appointment of a Custodian of it or for all or substantially all of its property; or (iv) makes a
general assignment for the benefit of its creditors; or (b) a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law that (i) is for relief against such Person as
debtor in an involuntary case; (ii) appoints a Custodian of such Person or a Custodian for all or
substantially all of the property of such Person; or (iii) orders the liquidation of such Person,
and, in the case of clauses (b)(i) through (b)(iii), the order or decree remains unstayed and in
effect for 60 days.
Base Indenture
has the meaning set forth in the recitals of this Eighteenth
Supplemental Indenture.
BookEntry Notes
has the meaning set forth in Section 2.3.
Calculation Agent
means Wells Fargo Bank, National Association (and its successors)
or any other firm hereafter appointed by the Company to act as calculation agent in respect of the
Notes.
Company
means the Person named as the Company in the preamble of this Eighteenth
Supplemental Indenture until a successor Person shall have become such pursuant to the applicable
provisions of the Indenture, and thereafter Company shall mean such successor Person.
Comparable Treasury Issue
means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the Remaining Life of the Notes
that would be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable maturity to the
Remaining Life of the Notes;
provided
,
however
, that if no maturity is within three
months (before or after) the end of the Remaining Life, yields for the two published maturities
most closely corresponding to such United States Treasury security will be determined and the
Treasury Yield will be interpolated or extrapolated from those yields on a straight-line basis
rounding to the nearest month.
Comparable Treasury Price
means, with respect to any Redemption Date, (a) the
average, after excluding the highest and lowest such Reference Treasury Dealer Quotations, of the
Reference Treasury Dealer Quotations for such Redemption Date, or (b) if the Independent Investment
Banker obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations received.
Current Interest
means, on or prior to an Interest Payment Date, interest accrued on
the principal amount of the Notes at the Fixed Rate or the Floating Rate, as the case may be, since
the immediately preceding Interest Payment Date. For the avoidance of doubt, Current Interest shall
not include Deferred Interest.
Deferred Interest
means (a) interest the payment of which has been deferred pursuant
to Section 4.1 plus (b) all interest accrued thereon since the due date thereof in accordance with
Section 2.6(a) and 2.6(d).
Depositary
means DTC or, if DTC shall have ceased performing such function, any
other Person selected by the Company, so long as such Person is registered as a clearing agency
under the Exchange Act or other applicable statutes or regulations.
DTC
means The Depository Trust Company, New York, New York, or any successor
thereto.
2
Eighteenth Supplemental Indenture
has the meaning set forth in the preamble hereto.
Fixed Rate
means 7.000% per annum.
Fixed Rate Period
means the period commencing on June 1, 2009 to, but not including,
June 1, 2017.
Floating Rate
means, with respect to a Quarterly Interest Period, the sum of the
Three-Month LIBOR Rate for such Quarterly Interest Period plus 2.7775%.
Floating Rate Period
means the period commencing on June 1, 2017 to, but not
including, June 1, 2067.
Guarantee
has the meaning given in Section 7.1.
Indenture
means the Base Indenture, as amended and supplemented by this Eighteenth
Supplemental Indenture, including the form and terms of the Notes as set forth herein, as the same
shall be amended from time to time.
Independent Investment Banker
means either J.P. Morgan Securities Inc. or Wachovia
Capital Markets, LLC (or their respective successors) or, if no such firm is willing and able to
select the applicable Comparable Treasury Issue or perform the other functions of the Independent
Investment Banker provided herein, an independent investment banking institution of national
standing appointed by the Trustee and reasonably acceptable to the Company.
Interest
means, collectively, Current Interest and Deferred Interest.
Interest Payment Date
means a Quarterly Interest Payment Date or a Semi-Annual
Interest Payment Date, as the case may be.
Interest Period
means a Quarterly Interest Period or a Semi-Annual Interest Period,
as the case may be.
LIBOR Interest Determination Date
has the meaning set forth in the definition of
Three-Month LIBOR Rate.
LIBOR Rate Reset Date
has the meaning set forth in the definition of Three-Month
LIBOR Rate.
London Banking Day
means any Business Day on which dealings in deposits in U.S.
dollars are transacted in the London interbank market.
Make-Whole Redemption Price
means, with respect to a Redemption Date, an amount
equal to (a) all accrued and unpaid Interest to but not including such Redemption Date, plus (b)
the greater of (i) 100% of the principal amount of the Notes being redeemed and (ii) as determined
by an Independent Investment Banker, the sum of the present values of remaining scheduled payments
of principal and interest on the Notes (exclusive of interest accrued to the Redemption Date) being
redeemed during the Remaining Life, discounted to such Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Yield plus 0.50%. The
Make-Whole Redemption Price, calculated as provided herein, shall be calculated and certified to
the Trustee and the Company by an Independent Investment Banker.
Notes
has the meaning set forth in the recitals of this Eighteenth Supplemental
Indenture.
Optional Deferral
has the meaning set forth in Section 4.1(a).
Optional Deferral Period
means the period of time commencing on an Interest Payment
Date with respect to which the Company has optionally deferred payment of Interest pursuant to
Section 4.1(a) and ending upon the
earlier of (a) the Interest Payment Date on which all Deferred Interest and Current Interest
to, but not including, such Interest Payment Date shall have been paid and (b) the first Interest
Payment Date on which the Company shall have
3
deferred payment of some or all of the Interest due on
a number of consecutive Interest Payment Dates with respect to consecutive Interest Periods which,
taken together as a single period, would equal or exceed ten (10) consecutive years.
Optional Redemption Price
means, with respect to a Redemption Date, 100% of the
principal amount of the Notes being redeemed plus all unpaid Interest thereon to but not including
such Redemption Date.
Parent Guarantor
means the Person named as the Parent Guarantor in the preamble of
this Eighteenth Supplemental Indenture until a successor Person shall have become such pursuant to
the applicable provisions of the Indenture, and thereafter Parent Guarantor shall mean such
successor Person.
Primary Treasury Dealer
has the meaning set forth in the definition of Reference
Treasury Dealer.
Quarterly Interest Payment Date
means each March 1, June 1, September 1, and
December 1 during the Floating Rate Period, commencing September 1, 2017;
provided
,
however
, that if any such day is not Business Day, then the Quarterly Interest Payment Date
shall be the immediately succeeding Business Day (except if such next succeeding Business Day falls
in the next succeeding calendar month, then such payment shall be made on the immediately preceding
Business Day).
Quarterly Interest Period
means each period commencing on a Quarterly Interest
Payment Date and continuing to but not including the next succeeding Quarterly Interest Payment
Date (except that the first Quarterly Interest Period will commence on June 1, 2017).
Redemption Price
means (a) in the case of redemption of the Notes pursuant to
Section 3.1(a), the Make-Whole Redemption Price, (b) in the case of redemption of the Notes
pursuant to Section 3.1(b), the Special Event Make-Whole Redemption Price and (c) in the case of
redemption of the Notes pursuant to Section 3.1(c), the Optional Redemption Price.
Reference Banks
has the meaning set forth in the definition of Three-Month LIBOR
Rate.
Reference Treasury Dealer
means each of (a) J.P. Morgan Securities Inc. and Wachovia
Capital Markets, LLC (and their respective successors) and (b) three other primary United States
government securities dealers in New York City selected by the Independent Investment Banker, each
of which we refer to as a Primary Treasury Dealer. However, if any of the foregoing ceases to be
a Primary Treasury Dealer, we will substitute another Primary Treasury Dealer for such dealer.
Reference Treasury Dealer Quotation
means, with respect to each Reference Treasury
Dealer and any Redemption Date for the Notes, an average, as determined and furnished to the
Independent Investment Banker by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing
to the Trustee by such Reference Treasury Dealer at or about 5:00 p.m., New York City time, on the
third Business Day preceding such Redemption Date.
Remaining Life
means the period of time from the date on which the Notes are
redeemed to June 1, 2017.
Reuters Page LIBOR01
means the display so designated on the Reuters 3000 Xtra (or
such other page as may replace such page on such service, or such other service as may be nominated
as the information vendor, for the purpose of displaying rates or prices comparable to the London
Interbank Offered Rate for U.S. dollar deposits).
Semi-Annual Interest Period
means each period commencing on a Semi-Annual Interest
Payment Date and continuing to but not including the next succeeding Semi-Annual Interest Payment
Date (except that the first Semi-Annual Interest Period will begin on June 1, 2009).
Semi-Annual Interest Payment Date
means each June 1 and December 1 commencing
December 1, 2009 (or, in the case of any additional Notes issued pursuant to clause (ii) of Section
2.1, the date set forth in the Company Order providing for the issuance of any such additional
Notes) through June 1, 2017;
provided
,
however
,
4
that if any such day is not
Business Day, then the Semi-Annual Interest Payment Date shall be the next succeeding Business Day.
Senior Indebtedness
means, with respect to any Person, the principal of, any
interest and premium, if any, on and any other payments in respect of any of the following, whether
currently outstanding or hereafter created or incurred: (a) (i) indebtedness of such Person for
borrowed money; (ii) indebtedness of such Person evidenced by securities, bonds, notes, and
debentures, including any of the same that are subordinated, issued under credit agreements,
indentures or other similar instruments (other than this Eighteenth Supplemental Indenture) and
other similar instruments, other than, in the case of the Company, the Notes; (iii) obligations of
such Person arising from or with respect to guarantees and direct credit substitutes, other than,
in the case of the Parent Guarantor, the Parent Guarantors obligations under the Guarantee; (iv)
obligations of such Person arising from or with respect to hedges and derivative products
(including, but not limited to, interest rate, commodity, and foreign exchange contracts); (v)
capital lease obligations of such Person; (vi) all of the obligations of such Person arising from
or with respect to any letter of credit, bankers acceptance, security purchase facility, cash
management arrangements or similar credit transactions; (vii) operating leases of such Person (but
only to the extent the terms of such leases expressly provide that the same constitute
Senior
Indebtedness
); and (viii) guarantees by such Person of any indebtedness or obligations of
others of the types described in clauses (i) through (vii) other than, in the case of the Parent
Guarantor, the Guarantee and (b) any modifications, refundings, deferrals, renewals, or extensions
of any of the foregoing or any other evidence of indebtedness issued in exchange therefor;
provided
,
however
, that Senior Indebtedness shall not include the obligations of
such Person in respect of: (v) trade accounts payable of such Person; (w) any indebtedness incurred
by such Person for the purchase of goods or materials or for services obtained in the ordinary
course of business to the extent that the same is incurred from, and owed to, the vendor of such
goods or materials or the provider of such services; (x) any indebtedness or other obligation of
such Person which by the terms of the instrument creating or evidencing it is expressly made equal
in rank and payment with or subordinated to the Notes or the Guarantee, as the case may be; (y)
indebtedness owed by such Person to its Subsidiaries; and (z) in the case of the Company, the
Companys Subordinated Notes due 2066 and Subordinated Notes due 2068 and, in the case of the
Parent Guarantor, the Parent Guarantors guarantees of the Subordinated Notes due 2066 and
Subordinated Notes due 2068.
Special Event
means (a) the receipt by the Company of an opinion of counsel
experienced in such matters to the effect that, as a result of any (i) amendment to, clarification
of or change (including any prospective change) in the laws or regulations of the United States or
any political subdivision or taxing authority of or in the United States that is effective on or
after the date of issuance of the Notes, (ii) proposed change in those laws or regulations that is
announced on or after the date of issuance of the Notes, (iii) official administrative decision or
judicial decision or administrative action or other official pronouncement (including a private
letter ruling, technical advice memorandum or other similar pronouncement) by any court, government
agency or regulatory authority interpreting or applying those laws or regulations that is announced
on or after the date of issuance of the Notes, or (iv) threatened challenge asserted in connection
with an audit of the Company or any of the Companys subsidiaries, or a threatened challenge
asserted in writing against any taxpayer that has raised capital through the issuance of securities
that are substantially similar to the Notes (including any trust preferred or similar securities)
that occurs on or after the date of issuance of the Notes, there is more than an insubstantial risk
that interest payable on the Notes is not, or within 90 days of the date of such opinion will not
be, deductible, in whole or in part, by the Company or its partners, as applicable, for U.S.
federal income tax purposes or (b) a change by any nationally recognized statistical rating
organization within the meaning of Section 3(a)(62) of the Exchange Act that publishes a rating for
the Company (a
rating agency
) to its equity credit criteria for securities such as the
Notes, as such criteria is in effect on the date of this Eighteenth Supplemental Indenture (the
current criteria
), which change results in (i) any shortening of the length of time for
which such current criteria are scheduled to be in effect with respect to the Notes, or (ii) a
lower equity credit being given to the Notes as of the date of such change than the equity credit
that would have been assigned to the Notes as of the date of such change by such rating agency
pursuant to its current criteria.
Special Event Make-Whole Redemption Price
means, with respect to a Redemption Date,
an amount equal to (a) all accrued and unpaid Interest to but not including such Redemption Date,
plus (b) the greater of (i)
100% of the principal amount of the Notes being redeemed and (ii) as determined by an
Independent Investment Banker, the sum of the present values of remaining scheduled payments of
principal and interest on the Notes (exclusive of interest accrued to the Redemption Date) being
redeemed during the Remaining Life, discounted to
5
such Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Yield plus 0.50%. The
Special Event Make-Whole Redemption Price, calculated as provided herein, shall be calculated and
certified to the Trustee and the Company by an Independent Investment Banker.
Subordinated Notes due 2068
means the Companys 7.034% Fixed/Floating Rate Junior
Subordinated Notes due 2068.
Subordinated Notes due 2066
means the Companys 8.375% Fixed/Floating Rate Junior
Subordinated Notes due 2066.
Three-Month LIBOR Rate
means, for each Quarterly Interest Period during the Floating
Rate Period, the rate (expressed as a percentage per year) for deposits in U.S. dollars for a
three-month period that appears on Reuters Page LIBOR01 as of 11:00 a.m. (London time) on the
second London Banking Day (the
LIBOR Interest Determination Date
) immediately preceding
the first day of such Quarterly Interest Period (the
LIBOR Rate Reset Date
). If such rate
does not appear on such page for the purpose of displaying offered rates of leading banks for
London interbank deposits in U.S. dollars, the Three-Month LIBOR Rate will be determined on the
basis of the rates, at approximately 11:00 a.m., London time, on the LIBOR Interest Determination
Date, at which U.S. dollar deposits with a maturity of three months in an amount determined by the
Calculation Agent as representative of a single transaction in the relevant market and at the
relevant time are offered by four major banks in the London interbank market selected and certified
to the Calculation Agent by the Company (
Reference Banks
) to prime banks in the London
interbank market for the interest period commencing on the LIBOR Rate Reset Date. The Company will
request the principal London office of each of the Reference Banks to provide a quotation of its
rate. If at least two quotations are provided as requested, the Three-Month LIBOR Rate will be the
arithmetic mean of the quotations. If fewer than two quotations are provided as requested, the
Three-Month LIBOR Rate will be the interest rate per annum equal to the average of the rates per
annum quoted by three major banks in New York City selected and certified to the Calculation Agent
by the Company, at or about 11:00 a.m., New York City time, on the LIBOR Interest Determination
Date, for loans in U.S. dollars to leading European banks in amounts that are representative of a
single transaction in the relevant market and at the relevant time with a maturity corresponding to
the interest period and commencing on the LIBOR Rate Reset Date. If fewer than three New York City
banks selected and certified to the Calculation Agent by the Company are quoting rates, the
Three-Month LIBOR Rate for the applicable interest period will be the same as for the immediately
preceding Quarterly Interest Period or, in the case of the Quarterly Interest Period beginning on
June 1, 2017, the interest rate on the Notes will be the same as for the most recent quarterly
period for which the Three-Month LIBOR Rate can be determined.
Treasury Yield
means, with respect to any Redemption Date, the rate per annum equal
to the semi-annual equivalent yield to maturity (computed as of the third Business Day immediately
preceding such Redemption Date) of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
applicable Comparable Treasury Price for such Redemption Date.
Trustee
means the Person named as the Trustee in the preamble of this Eighteenth
Supplemental Indenture until a successor Person shall have become such pursuant to the applicable
provisions of the Indenture, and thereafter Trustee shall mean such successor Person.
Section 1.2
Rules of Construction
. In addition to the Rules of Construction under
Section 1.04 of the Base Indenture, the following provisions also shall be applied wherever
appropriate herein:
(a) any references herein to a particular Section, Article, or Exhibit means a Section or
Article of, or an Exhibit to, this Eighteenth Supplemental Indenture unless otherwise expressly
stated herein; and
(b) the Exhibits attached hereto are incorporated herein by reference and shall be considered
part of this Eighteenth Supplemental Indenture.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
6
Section 2.1
Designation and Principal Amount
. There is hereby authorized a series of
Debt Securities under the Indenture designated the 7.000% Fixed/Floating Rate Junior Subordinated
Notes due 2067. The Trustee shall authenticate and deliver (i) the Notes for original issue on the
date hereof in the aggregate principal amount of $285,759,000 and (ii) additional Notes for
original issue from time to time after the date hereof in such principal amounts as may be
specified from time to time in a Company Order for the authentication and delivery thereof pursuant
to Section 2.05 of the Base Indenture. Any additional Notes shall have the same Stated Maturity and
other terms as the original issue of Notes and shall be consolidated with and be part of the
original issue of Notes. The Notes shall be issued in denominations of $1,000 in principal amount
and integral multiples thereof.
Section 2.2
Maturity
. The principal amount of the Notes shall be payable on the
maturity date of the Notes, which is June 1, 2067.
Section 2.3
Form
. The Notes and the Trustees certificate of authentication thereon
shall be substantially in the form of Exhibit A.
The Notes shall be issued only in registered form and, when issued, shall be registered in the
Debt Security Register of the Company. The Notes shall be originally issued in the form of one or
more Global Securities (the
Book-Entry Notes
). Each of the Book-Entry Notes shall
represent such of the Outstanding Notes as shall be specified therein and shall provide that it
shall represent the aggregate amount of Outstanding Notes from time to time endorsed thereon and
that the aggregate amount of Outstanding Notes represented thereby may from time to time be reduced
or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of Book-Entry
Notes to reflect the amount, or any increase or decrease in the amount, of Outstanding Notes
represented thereby shall be made by the Trustee in accordance with written instructions or such
other written form of instructions as is customary for the Depositary, from the Depositary or its
nominee on behalf of any Person having a beneficial interest in such Book-Entry Notes. The Company
initially appoints DTC to act as Depositary with respect to the Book-Entry Notes.
Section 2.4
Registrar and Paying Agent
. The Company initially appoints the Trustee as
Registrar and paying agent with respect to the Notes. The office or agency in the City and State of
New York where the Notes may be presented for registration of transfer or exchange and the Place of
Payment for the Notes shall initially be the corporate trust office of Wells Fargo Bank, National
Association at 45 Broadway, 14th Floor, New York, New York 10006.
Section 2.5
Transfer and Exchange
.
The transfer and exchange of Book-Entry Notes or beneficial interests therein shall be
effected through the Depositary, in accordance with Section 2.15 of the Base Indenture and the
rules and procedures of the Depositary therefor.
Section 2.6
Interest Rates; Payment of Principal and Interest
.
(a)
Rates
.
(i) Interest During the Fixed Rate Period. During the Fixed Rate Period, (A) the
outstanding principal amount of the Notes and (B) to the extent permitted by applicable law,
any Deferred Interest or overdue interest thereon, will bear interest at a per annum rate
equal to the Fixed Rate until the commencement of the Floating Rate Period or, if earlier,
until the principal thereof and all Interest thereon is paid, compounded semi-annually and
payable (subject to the provisions of Article IV) semi-annually, in arrears on each
Semi-Annual Interest Payment Date.
(ii) Interest During the Floating Rate Period. During the Floating Rate Period, (A) the
outstanding principal amount of the Notes and (B) to the extent permitted by applicable law,
any Deferred Interest or overdue interest thereon will bear interest during each Quarterly
Interest Period at a per annum rate equal to the applicable Floating Rate for such period,
until the principal thereof and all Interest thereon is paid, compounded quarterly and
payable (subject to the provisions of Article IV) quarterly in
7
arrears on each Quarterly Interest Payment Date. The Calculation Agent will calculate the Floating Rate with respect
to each Floating Rate Period and the amount of Interest payable on each Quarterly Interest
Payment Date as promptly as practicable according to the appropriate method described
herein. Promptly upon such determination, the Calculation Agent will notify the Company and
the Trustee of the Floating Rate for the Floating Rate Period and the amount of Interest
payable to each Holder on each Quarterly Interest Payment Date. The Floating Rate determined
by the Calculation Agent, absent manifest error, will be binding and conclusive upon the
beneficial owners and Holders of the Notes, the Company and the Trustee.
(b)
Payment of Interest to Record Holders of the Notes
. Payments of principal of,
premium, if any, and Interest due on the Notes representing Book-Entry Notes on any Interest
Payment Date, upon redemption or at maturity will be made available to the Trustee by 11:00 a.m.,
New York City time, on the applicable maturity date, Redemption Date, or Interest Payment Date,
unless such date falls on a day which is not a Business Day, in which case such payments will be
made available to the Trustee by 11:00 a.m., New York City time, on the next succeeding Business
Day;
provided
,
however
, that, during the Floating Rate Period, if such next
succeeding Business Day falls in the next succeeding calendar month, then such payments will be
made available to the Trustee by 11:00 a.m., New York City time, on the immediately preceding
Business Day. As soon as possible thereafter, the Trustee will make such payments to the
Depositary. Other than in connection with the maturity or redemption of the Notes or in connection
with payment of Defaulted Interest, Interest on the Notes may be paid only on an Interest Payment
Date. Payments of principal of, premium, if any, and Interest due on Notes other than Book-Entry
Notes on any Interest Payment Date, upon redemption or at maturity will be made in accordance with
Article II of the Base Indenture. The regular record date for Interest payable on the Notes on any
Interest Payment Date during the Fixed Rate Period shall be the May 15 or November 15, as the case
may be, immediately preceding such Interest Payment Date and during the Floating Rate Period shall
be the February 15, May 15, August 15 or November 15, as the case may be, immediately preceding such
Interest Payment Date.
(c) The amount of Interest payable on any Interest Payment Date during the Fixed Rate Period
will be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of
Interest payable on any Interest Payment Date during the Floating Rate Period will be computed on
the basis of a 360-day year and the actual number of days elapsed.
(d) To the extent permitted by applicable law, Interest not paid when due hereunder,
including, without limitation, all Deferred Interest and overdue Interest, shall in accordance with
Section 2.6(a), until paid, compound (i) semi-annually at the Fixed Rate on each Semi-Annual
Interest Payment Date during the Fixed Rate Period and (ii) quarterly at the applicable Floating
Rate on each Quarterly Interest Payment Date during the Floating Rate Period.
(e) If the Company shall make a partial payment of Interest on any Interest Payment Date, such
payment shall, with respect to the Notes, be applied, first, to Deferred Interest until all such
Deferred Interest has been paid and, second, to any Current Interest.
(f) To the extent that the provisions of this Section 2.6 are inconsistent with the provisions
of Article II of the Base Indenture, the provisions of this Section 2.6 shall control.
ARTICLE III
REDEMPTION OF THE NOTES
Section 3.1
Optional Redemption
. Subject to the provisions of Article III of the Base
Indenture, the Company shall have the option to redeem the Notes for cash:
(a) in whole or in part, at any time and from time to time prior to June 1, 2017, at the
Make-Whole Redemption Price;
8
(b) after the occurrence of a Special Event, in whole but not in part, at any time prior to
June 1, 2017, at the Special Event Make-Whole Redemption Price; and
(c) in whole or in part, at any time and from time to time on or after June 1, 2017, at the
Optional Redemption Price.
Section 3.2
Certain Redemption Procedures
. Notes called for optional redemption shall
become due on the Redemption Date. Notices of optional redemption will be mailed at least 30 days
but not more than 60 days before the Redemption Date to each Holder of the Notes to be redeemed at
its registered address. The notice of optional redemption for the Notes will state, among other
things, the amount of Notes to be redeemed, the Redemption Date, the method of calculating such
Redemption Price, and the place(s) that payment will be made upon presentation and surrender of
Notes to be redeemed. Unless the Company defaults in payment of the Redemption Price or the paying
agent is prohibited from making such payment pursuant to the terms of Article XII of the Base
Indenture, interest will cease to accrue on the Redemption Date with respect to any Notes that have
been called for optional redemption. If less than all the Notes are redeemed at any time, the
Trustee will select the Notes to be redeemed on a pro rata basis or by any other method the Trustee
deems fair and appropriate. The Company may not redeem the Notes in part if the principal amount of
the Notes has been accelerated and such acceleration has not been rescinded unless all accrued and
unpaid Interest (including Deferred Interest) has been paid in full on all outstanding Notes for
all Interest Periods terminating on or before the Redemption Date.
The Notes may be redeemed in part only in principal amounts that are integral multiples of $1,000.
Section 3.3
No Sinking Fund
. The Notes will not be entitled to the benefit of any sinking fund.
ARTICLE IV
DEFERRAL OF INTEREST
Section 4.1
Optional Deferral of Interest
.
(a) The Company shall have the right, at any time and from time to time during the term of the
Notes, to elect to defer payment of all or any portion of any Current Interest and/or Deferred
Interest otherwise due on the Notes on any Interest Payment Date (
Optional Deferral
);
provided
,
however
, that the Company may not (i) elect to defer payment of any
Interest otherwise due on any Interest Payment Date if, as a result of such deferral, the Company
shall have deferred payment of some or all of the Interest due on a number of consecutive Interest
Payment Dates with respect to a number of consecutive Interest Periods which, when taken together
as a single period, would equal or exceed ten (10) consecutive years, or (ii) elect to defer
payment of any Interest due on the maturity date of the Notes, or, with respect to any Notes being
redeemed, on the Redemption Date for such Notes. No Interest on the Notes shall be due and payable
on any Interest Payment Date during an Optional Deferral Period; however, Interest shall accrue on
the Notes during such period in accordance with Sections 2.6(a) and 2.6(d).
(b) Following the termination of an Optional Deferral Period and the payment of all Deferred
Interest accrued during such Optional Deferral Period, the Company may again elect pursuant to
Section 4.1(a) to make an Optional Deferral of Interest.
(c) On the Interest Payment Date on which the Company desires to terminate an Optional
Deferral Period or at the end of an Optional Deferral Period pursuant to clause (b) of the
definition of
Optional Deferral Period
, the Company shall pay all Deferred Interest and
Current Interest due on such Interest Payment Date. Such Interest shall be payable to the Holders
of the Notes in whose names the Notes are registered in the Debt Security Register for the Notes on
the record date with respect to such Interest Payment Date.
Section 4.2
Notice of Deferrals
.
(a) The Company shall give written notice to the Trustee of any election of Optional Deferral
pursuant to Section 4.1 not fewer than ten (10) nor more than sixty (60) Business Days prior to the
applicable
9
Interest Payment Date for which Interest on the Notes will be deferred, other than an
Optional Deferral in the circumstances described in Section 4.2(b). The Trustee shall forward such
written notice promptly to each Holder of the Notes.
(b) In the case of an election of Optional Deferral pursuant to Section 4.1 when the Company
or the Parent Guarantor would be prohibited pursuant to Section 12.03 of the Base Indenture from
paying Interest on the Notes, the Company shall give written notice to the Trustee of such election
of Optional Deferral not later than the time monies in respect of the Interest payment on the
applicable Interest Payment Date must be made available to the Trustee pursuant to Section 2.6(b)
hereof. The Trustee shall forward such written notice promptly to each Holder of the Notes.
ARTICLE V
CERTAIN COVENANTS
Section 5.1
Covenants in Indenture
. Holders of the Notes shall not have the benefit of
and shall not be entitled to enforce the covenants contained in Sections 4.12 and 4.13 of the Base
Indenture.
Section 5.2
Restricted Payments
.
(a) Subject to Section 5.2(b), during any Optional Deferral Period, (i) the Company and the
Parent Guarantor will not declare or make any distributions with respect to, or redeem, purchase,
or make a liquidation payment with respect to, any of their respective equity securities and (ii)
the Company and the Parent Guarantor will not, and will cause their respective Subsidiaries not to
(A) make any payment of interest, principal, or
premium, if any, on or repay, repurchase, or redeem any of the Companys or the Parent
Guarantors debt securities (including securities similar to the Notes) that contractually rank
equally with or junior to the Notes or the Guarantee, respectively, or (B) make any payment under a
guarantee of the Companys or the Parent Guarantors debt securities (including under a guarantee
of debt securities that are similar to the Notes) that contractually ranks equally with or junior
to the Notes or the Guarantee, respectively.
(b) Notwithstanding the provisions of Section 5.2(a), the Company, the Parent Guarantor and
any of their respective Subsidiaries may take any of the following actions at any time, including
during an Optional Deferral Period: (i) make any purchase, redemption or other acquisition of any
equity securities in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of employees, officers, directors, or agents, or a securities
purchase or dividend or distribution reinvestment plan, or the satisfaction of obligations pursuant
to any contract or security outstanding on the date that the Optional Deferral Period commences
requiring the purchase, redemption or acquisition of such equity securities; (ii) make any payment,
repayment, redemption, purchase, acquisition or declaration of a distribution as a result of a
reclassification of any of their respective equity securities or the exchange or conversion of all
or a portion of one class or series of such equity securities for another class or series of such
equity securities; (iii) purchase fractional interests in any of their respective equity securities
pursuant to the conversion or exchange provisions of such securities or the security being
converted or exchanged, in connection with the settlement of stock purchase contracts or in
connection with any split, reclassification or similar transaction; (iv) make a distribution paid
or made in any of their respective equity securities (or rights to acquire such equity securities),
or a repurchase, redemption or acquisition of such equity securities in connection with the
issuance or exchange of such equity securities (or of securities convertible into or exchangeable
for such equity securities) and distributions in connection with the settlement of securities
purchase contracts outstanding on the date that the Optional Deferral Period commences; (v) make
any redemption, exchange or repurchase of, or with respect to, any rights outstanding under a
rights plan or the declaration or payment thereunder of a distribution of or with respect to rights
in the future; (vi) make any payments under (A) the Notes and under securities similar to the Notes
(including trust preferred securities) that are (or, in the case of a trust preferred security, the
underlying debt obligation is)
pari passu
with the Notes and (B) the Guarantee and similar
guarantees associated with any instruments that are (or, in the case of a trust preferred security,
the underlying debt obligation is)
pari passu
with the Notes, in each case, so long as any such
payments are made on a pro rata basis with the Notes and the Guarantee, respectively; or (vii) make
any regularly scheduled dividend or distribution payments declared prior to the date that the
Optional Deferral Period commences.
10
(c) Whether another security is similar to the Notes and whether another guarantee is similar
to the Guarantee for purposes of Section 5.2(b)(vi) shall be determined by the Company in its
reasonable discretion. For purposes of Section 5.2(b)(vi), the Subordinated Notes due 2066 and the
Subordinated Notes due 2068 are similar to the Notes and the Parent Guarantors guarantees of the
Subordinated Notes due 2066 and the Subordinated Notes due 2068 are similar to the Guarantee. For
purposes of Section 5.2(b)(iv) of the Amended and Restated Eighth Supplemental Indenture dated as
of August 25, 2006 and Section 5.2(b)(iv) of the Ninth Supplemental Indenture dated as of May 24,
2007, the Notes are similar to the Subordinated Notes due 2066 and the Subordinated Notes due 2068,
respectively, and the Guarantee is similar to the Parent Guarantors guarantees of the Subordinated
Notes due 2066 and the Subordinated Notes due 2068.
(d) For the avoidance of doubt, nothing contained herein shall prevent the Company or the
Parent Guarantor from issuing any other securities, whether senior to,
pari passu
with or
subordinated to the Notes, including securities having covenants and provisions the same as or
similar to those applicable to the Notes, or any guarantees with respect thereto.
ARTICLE VI
SUBORDINATION
Section 6.1
Ranking of the Notes
.
(a) The Notes shall be subordinated to all Senior Indebtedness (as defined in this Eighteenth
Supplemental Indenture) of the Company on the terms and subject to the conditions set forth in
Article XII of the Base Indenture, and each Holder of Notes issued hereunder by such Holders
acceptance thereof acknowledges and agrees that all Notes shall be issued subject to the provisions
of this Article VI and such Article XII and that each Holder of Notes, whether upon original
issuance or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions.
The Notes shall be
Subordinated Debt Securities
as such term is used in the Indenture,
and, for purposes of the Notes only, and not for purposes of any other Debt Securities, all
references in the Indenture to Senior Indebtedness of the Company shall mean Senior Indebtedness of
the Company as defined in this Eighteenth Supplemental Indenture.
(b) The Notes shall be equal in rank and right of payment in all respects and are
pari passu
with the Subordinated Notes due 2066 and the Subordinated Notes due 2068.
Section 6.2
Amendment and Restatement of Section 12.02 of the Base Indenture
. For
purposes of the Notes only, and not for purposes of any other Debt Securities, Section 12.02 of the
Base Indenture is hereby amended and restated in its entirety to read as follows:
Section 12.02
Liquidation, Dissolution, Bankruptcy
. Upon any payment or distribution
of the assets of the Company to creditors upon a total or partial liquidation or a total or partial
dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property:
(a) holders of Senior Indebtedness of the Company shall be entitled to receive payment in full
in cash of such Senior Indebtedness (including interest (if any), accruing on or after the
commencement of a proceeding in bankruptcy, whether or not allowed as a claim against the Company
in such bankruptcy proceeding) before Holders of Subordinated Debt Securities of the Company shall
be entitled to receive any payment of principal of, or premium, if any, or interest on, the
Subordinated Debt Securities; and
(b) until the Senior Indebtedness of the Company is paid in full, any such distribution to
which Holders of Subordinated Debt Securities would be entitled but for this Article XII shall be
made to holders of Senior Indebtedness of the Company as their interests may appear, except that
such Holders may receive securities representing equity interests of the Company and any debt
securities of the Company that are subordinated to Senior Indebtedness of the Company to at least
the same extent as the Subordinated Debt Securities of the Company.
11
Upon any payment or distribution of the assets of any Guarantor to creditors upon a total or
partial liquidation or a total or partial dissolution of such Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to such Guarantor or its
property:
(a) holders of Senior Indebtedness of such Guarantor shall be entitled to receive payment in
full in cash of such Senior Indebtedness (including interest (if any), accruing on or after the
commencement of a proceeding in bankruptcy, whether or not allowed as a claim against such
Guarantor in such bankruptcy proceeding) before Holders of Subordinated Debt Securities shall be
entitled to receive, under such Guarantors guarantee of such Subordinated Debt Securities, any
payment of principal of, or premium, if any, or interest on, the Subordinated Debt Securities; and
(b) until the Senior Indebtedness of such Guarantor is paid in full, any such distribution to
which Holders of Subordinated Debt Securities would be entitled under such Guarantors guarantee
but for this Article XII shall be made to holders of Senior Indebtedness of such Guarantor as their
interests may appear, except that such Holders may receive securities representing equity interests
of such Guarantor and any debt securities of such Guarantor that are subordinated to Senior
Indebtedness of such Guarantor to at least the same extent as the guarantee of the Subordinated
Debt Securities of such Guarantor.
Section 6.3
Amendment and Restatement of Section 12.03 of the Base Indenture
. For purposes of the Notes only, and not for purposes of any other Debt Securities, Section
12.03 of the Base Indenture is hereby amended and restated in its entirety to read as follows:
Section 12.03
Default on Senior Indebtedness
. The Company may not pay the principal
of, or premium, if any, or interest on, the Subordinated Debt Securities or make any deposit
pursuant to Article XI and may not repurchase, redeem or otherwise retire any Subordinated Debt
Securities (collectively, pay the Subordinated Debt Securities) if (a) any principal, premium or
interest in respect of Senior Indebtedness of the Company is not paid when due, including any
applicable grace period (including at maturity) or (b) any other default on Senior Indebtedness of
the Company occurs and the maturity of such Senior Indebtedness is accelerated in accordance with
its terms unless, in either case, the default has been cured or waived and any such acceleration
has been rescinded or such Senior Indebtedness has been paid in full in cash;
provided
,
however
, that the Company may pay the Subordinated Debt Securities without regard to the
foregoing if the Company and the Trustee receive written notice approving such payment from the
Representative of each issue of Designated Senior Indebtedness of the Company. During the
continuance of any default (other than a default described in clause (a) or (b) of the preceding
sentence) with respect to any Designated Senior Indebtedness of the Company pursuant to which the
maturity thereof may be accelerated immediately without further notice (except such notice as may
be required to effect such acceleration) or the expiration of any applicable grace periods, the
Company may not pay the Subordinated Debt Securities for a period (a
Payment Blockage
Period
) commencing upon the receipt by the Company and the Trustee of written notice of such
default from the Representative of any Designated Senior Indebtedness of the Company specifying an
election to effect a Payment Blockage Period (a
Blockage Notice
) and ending 179 days
thereafter (or earlier if such Payment Blockage Period is terminated by written notice to the
Trustee and the Company from the Person or Persons who gave such Blockage Notice, by repayment in
full in cash of such Designated Senior Indebtedness or because the default giving rise to such
Blockage Notice is no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions contained in the first sentence of
this Section 12.03), unless the holders of such Designated Senior Indebtedness or the
Representative of such holders shall have accelerated the maturity of such Designated Senior
Indebtedness, the Company may resume payments on the Subordinated Debt Securities after such
Payment Blockage Period. Not more than one Blockage Notice may be given in any consecutive 360-day
period, irrespective of the number of defaults with respect to any number of issues of Designated
Senior Indebtedness during such period, unless otherwise specified pursuant to Section 2.03 for the
Subordinated Debt Securities of a series;
provided
,
however
, that in no event may
the total number of days during which any Payment Blockage Period or Periods is in effect exceed
179 days in the aggregate during any 360 consecutive day period. For purposes of this Section
12.03, no default or event of default which existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Designated Senior Indebtedness of
the Company initiating such Payment Blockage Period shall be, or be made, the basis of the
commencement of a subsequent Payment Blockage Period by the Representative of such Designated
Senior Indebtedness, whether or not within a period of 360 consecutive days, unless such default or
event of default shall have been cured or waived for a period of not less than 90 consecutive days.
12
No Guarantor may make a payment or distribution in respect of its guarantee of any
Subordinated Debt Securities (make a guarantee payment on Subordinated Debt Securities) if (a)
any principal, premium or interest in respect of Senior Indebtedness of such Guarantor is not paid
when due, including any applicable grace period (including at maturity) or (b) any other default on
Senior Indebtedness of such Guarantor occurs and the maturity of such Senior Indebtedness is
accelerated in accordance with its terms unless, in either case, the default has been cured or
waived and any such acceleration has been rescinded or such Senior Indebtedness has been paid in
full in cash;
provided
,
however
, that such Guarantor may make a guarantee payment
on the Subordinated Debt Securities without regard to the foregoing if such Guarantor and the
Trustee receive written notice approving such payment from the Representative of each issue of
Designated Senior Indebtedness of such Guarantor. During the continuance of any default (other than
a default described in clause (a) or (b) of the preceding sentence) with respect to any Designated
Senior Indebtedness of such Guarantor pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, such Guarantor may not make a
guarantee payment on Subordinated Debt Securities for a period (a
Payment Blockage
Period
) commencing upon the receipt by such Guarantor and the Trustee of written notice of
such default from the Representative of any Designated Senior Indebtedness specifying an election
to effect a Payment Blockage Period (a
Blockage Notice
) and ending 179 days thereafter
(or earlier if such Payment Blockage Period is terminated by written notice to the Trustee and such
Guarantor from the Person or Persons who gave such Blockage Notice, by repayment in full in cash of
such Designated Senior Indebtedness or because the
default giving rise to such Blockage Notice is no longer continuing). Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the provisions contained
in the first sentence of this paragraph of this Section 12.03), unless the holders of such
Designated Senior Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, such Guarantor may resume payments under its
guarantee of any Subordinated Debt Securities after such Payment Blockage Period. Not more than one
Blockage Notice may be given in any consecutive 360-day period, irrespective of the number of
defaults with respect to any number of issues of Designated Senior Indebtedness during such period,
unless otherwise specified pursuant to Section 2.03 for the Subordinated Debt Securities of a
series;
provided
,
however
, that in no event may the total number of days during
which any Payment Blockage Period or Periods is in effect exceed 179 days in the aggregate during
any 360 consecutive day period. For purposes of this Section 12.03, no default or event of default
which existed or was continuing on the date of the commencement of any Payment Blockage Period with
respect to the Designated Senior Indebtedness of such Guarantor initiating such Payment Blockage
Period shall be, or be made, the basis of the commencement of a subsequent Payment Blockage Period
by the Representative of such Designated Senior Indebtedness, whether or not within a period of 360
consecutive days, unless such default or event of default shall have been cured or waived for a
period of not less than 90 consecutive days.
ARTICLE VII
GUARANTEE OF THE NOTES
Section 7.1
Guarantee of the Notes
. In accordance with Article XIV of the Base
Indenture, the Notes, subject to Section 7.2, shall be fully, unconditionally and absolutely
guaranteed by the Parent Guarantor (the
Guarantee
) and are hereby designated as entitled
to the benefits of the Guarantee of the Parent Guarantor. Initially, there shall be no Subsidiary
Guarantors;
provided
,
however
, if any Subsidiary is required hereafter to guarantee
the Notes pursuant to Section 4.14 of the Indenture, such Guarantee shall be subordinated in the
same manner as the Guarantee of the Parent Guarantor.
Section 7.2
Ranking of the Guarantee
.
(a) The obligations of the Parent Guarantor under the Guarantee shall be subordinated to all
Senior Indebtedness (as defined in this Eighteenth Supplemental Indenture) of the Parent Guarantor
on the terms and subject to the conditions set forth in Article XII of the Base Indenture, and each
Holder of the Notes issued hereunder by such Holders acceptance thereof, acknowledges and agrees
that the Guarantee shall be issued subject to the provisions of this Section 7.2 and such Article
XII and that each Holder of Notes, whether upon original issuance or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions. The Guarantee of the Parent Guarantor
is a Guarantee of Subordinated Debt Securities, and, for purposes of the Notes only, and not for
purposes of any other Debt Securities, all references in the Indenture to Senior Indebtedness of
the Parent
13
Guarantor shall mean Senior Indebtedness, as defined in this Eighteenth Supplemental
Indenture, of the Parent Guarantor.
(b) The Parent Guarantors obligation under the Guarantee shall be equal in rank and right of
payment in all respects and is
pari passu
with the Parent Guarantors guarantees of the
Subordinated Notes due 2066 and the Subordinated Notes due 2068.
ARTICLE VIII
APPLICABILITY OF DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1
Applicability of Defeasance and Covenant Defeasance
. The Notes will be
subject to satisfaction, defeasance and discharge pursuant to Article XI of the Base Indenture in
accordance with the provisions of such Article;
provided
that for purposes of the Notes
only, and not
for purposes of any other Debt Securities, (i) references in Section 11.02(b) of the Base
Indenture to Sections 6.01(d), (g) and (h) of the Base Indenture shall be deemed to be references
only to Section 6.01(d) of the Base Indenture, and that references in Section 11.02(b) of the Base
Indenture to Sections 6.01(e) and (f) of the Base Indenture shall not apply.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES OF THE TRUSTEE
AND HOLDERS OF NOTES
Section 9.1
Amendment and Restatement of Section 6.01 of the Base Indenture
. For
purposes of the Notes only, and not for purposes of any other Debt Securities, Section 6.01 of the
Base Indenture is hereby amended and restated in its entirety to read as follows:
Section 6.01
Events of Default
. If any one or more of the following shall have
occurred and be continuing with respect to the Notes (each of the following an
Event of
Default
):
(a) failure to pay principal on the Notes when due;
(b) failure to pay Interest on the Notes when due and such default continues for thirty (30)
days (it being understood that the deferral of Interest as permitted by Article IV of the
Eighteenth Supplemental Indenture is not a default in payment of Interest on the Notes);
(c) the occurrence of a Bankruptcy Event with respect to the Company; or
(d) the Guarantee ceases to be in full force and effect or is declared null and void in a
judicial proceeding;
then, and in each and every case that an Event of Default described in clause (a), (b), and (d)
with respect to the Notes at the time Outstanding occurs and is continuing, unless the principal
of, premium, if any, and Interest on all the Notes shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Notes
then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by
Holders), may, and the Trustee at the request of such Holders shall, declare the principal of,
premium, if any, and Interest on all the Notes to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable, anything in the Notes,
this Indenture or in the Eighteenth Supplemental Indenture contained to the contrary
notwithstanding. If an Event of Default described in clause (c) occurs, then and in each and every
such case, unless the principal of, premium, if any, and Interest on all the Notes shall have
become due and payable, the principal of, premium, if any, and Interest on all the Notes then
Outstanding hereunder shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders, anything in the Notes, this
Indenture or in the Eighteenth Supplemental Indenture contained to the contrary notwithstanding.
14
The Holders of a majority in aggregate principal amount of the Notes then Outstanding by
written notice to the Trustee may rescind an acceleration and annul its consequences if the
rescission would not conflict with any judgment or decree of a court of competent jurisdiction
already rendered and if all existing Events of Default with respect to the Notes have been cured or
waived except nonpayment of principal, premium, if any, or Interest that has become due solely
because of acceleration. Upon any such rescission, the parties hereto shall be restored
respectively to their several positions and rights hereunder, and all rights, remedies, and powers
of the parties hereto shall continue as though no such proceeding had been taken.
Section 9.2
Conforming Amendments
. The reference in the last paragraph of Section 7.06
to Section 6.01(e) or (f) of the Base Indenture shall be deemed to refer only to Section 6.01(c) of
the Base Indenture.
ARTICLE X
MISCELLANEOUS
Section 10.1
Ratification of Base Indenture
. The Base Indenture, as amended and
supplemented by this Eighteenth Supplemental Indenture, is in all respects ratified and confirmed,
and this Eighteenth Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided;
provided
,
however
, that the provisions
of this Eighteenth Supplemental Indenture apply solely with respect to the Notes. The Indenture
shall, solely in respect of the Notes, be deemed a junior subordinated indenture.
Section 10.2
No Recourse
. No recourse under or upon any obligation, covenant, or
agreement contained in this Eighteenth Supplemental Indenture or the Base Indenture or for any
claim based hereon or thereon or otherwise in respect hereof or thereof, shall be had (a) against
the sole manager of the Company or the general partner of the Parent Guarantor or any other partner
of, or any Person which owns an interest directly or indirectly in, the Company, the Parent
Guarantor or such sole manager of the Company or general partner or (b) against any past, present,
or future director, manager, officer, employee, agent, member or partner, as such, of the Company,
the Parent Guarantor, the sole manager of the Company or such general partner, under any rule of
law, statute, or constitutional provision or otherwise, all such liability being expressly waived
and released by the execution hereof by the Trustee and as part of the consideration for the
issuance of the Notes.
Section 10.3
Separateness
. Each Holder of Notes by its acceptance thereof acknowledges
(a) that such Holder has acquired Notes in reliance upon the separateness of the Company, the sole
manager of the Company and the Parent Guarantor from one another and from any other Persons,
including any Affiliates thereof, (b) that the Company, the sole manager of the Company and the
Parent Guarantor have assets and liabilities that are separate from those of one another and from
those of other persons, including any Affiliates thereof, (c) that the Notes and other obligations
owing under the Notes have not been guaranteed by any Person, other than the Parent Guarantor and
only to the extent explicitly set forth herein, and (d) that, except in respect of the Parent
Guarantor and as other Persons may expressly assume or guarantee any of the Notes or obligations
thereunder, the Holders of the Notes shall look solely to the Company and its property and assets
for the payment of any amounts payable pursuant to the Notes and for satisfaction of any
obligations owing to the Holders of the Notes.
Section 10.4
Trustee Not Responsible for Recitals
. The recitals herein contained are
made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this
Eighteenth Supplemental Indenture.
Section 10.5
Governing Law
. This Eighteenth Supplemental Indenture, the Notes and the
Guarantee shall be governed by and construed in accordance with the laws of the State of New York.
Section 10.6
Time is of the Essence
. Time is of the essence in performance of the
obligations under this Eighteenth Supplemental Indenture.
Section 10.7
Separability
. In case any one or more of the provisions contained in this Eighteenth Supplemental
Indenture or in the Notes shall for any reason be held to be invalid, illegal, or unenforceable in
any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions
of this Eighteenth
15
Supplemental Indenture or of the Notes, but this Eighteenth Supplemental
Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision
had never been contained herein or therein.
Section 10.8
Treatment of the Notes
. By its acceptance of the Notes, each Holder and
beneficial owner of the Notes agrees to treat the Notes as indebtedness for all United States
federal, state and local tax purposes.
Section 10.9
Counterparts
. This Eighteenth Supplemental Indenture may be executed in
any number of counterparts each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 10.10
Withholding
. Notwithstanding any other provision of the Indenture or
this Eighteenth Supplemental Indenture to the contrary, each Holder and beneficial owner of the
Notes hereby authorizes the Company, if required by the Internal Revenue Code of 1986, as amended,
or by any other applicable legal requirement, to withhold any required amount from the amounts
payable by the Company hereunder to any Holder and/or beneficial owner of the Notes for payment to
the appropriate taxing authority. Any amount so withheld from such Person will be treated as a
payment by the Company to such Person, except as otherwise provided below. Each such Person agrees
to file timely any agreement that is required by any taxing authority in order to avoid any
withholding obligation that would otherwise be imposed on the Company. If the amount required to be
withheld with respect to such Person exceeds the amount payable to such Person, such excess will be
treated as a demand loan to such Person, payable within ten (10) days after such time that the
Company makes payment to the appropriate taxing authority and demand is made on such Person to pay
same.
[Signature Page Follows.]
16
IN WITNESS WHEREOF, the parties hereto have caused this Eighteenth Supplemental Indenture to
be duly executed and as of the day and year first above written.
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ENTERPRISE PRODUCTS OPERATING LLC, as Issuer
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By:
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Enterprise Products OLPGP, Inc.,
its Sole Manager
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By:
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/s/ W. Randall Fowler
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Name:
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W. Randall Fowler
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Title:
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Executive Vice President and Chief Financial
Officer
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ENTERPRISE PRODUCTS PARTNERS L.P., as
Parent Guarantor
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By:
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Enterprise Products GP, LLC,
its General Partner
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By:
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/s/ W. Randall Fowler
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Name:
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W. Randall Fowler
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Title:
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Executive Vice President and Chief Financial
Officer
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WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
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By:
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/s/ Patrick T. Giordano
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Name:
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Patrick T. Giordano
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Title:
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Vice President
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Eighteenth Supplemental Indenture Signature Page
EXHIBIT A
FORM OF NOTES
(FORM OF FACE OF NOTES)
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (
DTC
) (55 WATER STREET, NEW YORK, NEW YORK 10041) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]*
[TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO HEREIN.]*
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No.
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Principal Amount
$___, [which amount may be
increased or decreased by the Schedule
of Increases and Decreases in Global Security
attached hereto.] *
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ENTERPRISE PRODUCTS OPERATING LLC
7.000% FIXED/FLOATING RATE JUNIOR SUBORDINATED NOTES DUE 2067
CUSIP
ENTERPRISE PRODUCTS OPERATING LLC, a Texas limited liability company (the
Company
,
which term includes any successor under the Indenture hereinafter referred to), for value received,
hereby promises to pay to [Cede & Co.]* or its registered assigns, the principal sum of
U.S. dollars ($
), [or such greater or lesser principal sum as is shown
on the attached Schedule of Increases and Decreases in Global Security]* on June 1, 2067 in such
coin and currency of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, and to pay interest as provided below.
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*
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To be included in a Book-Entry Note.
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A-1
From June 1, 2009 to, but not including, June 1, 2017 (or, if earlier, until the principal
thereof is paid) (the
Fixed Rate Period
), the outstanding principal amount hereof and (to
the extent that payment of such interest is enforceable under applicable law) any Deferred Interest
or overdue installment of Interest hereon will bear interest at the per annum rate of 7.000%
payable (subject to the provisions of the Indenture more fully described on the reverse hereof that
permit the Company to elect to defer payments of Interest) semi-annually in arrears on June 1 and
December 1, of each year, commencing December 1, 2009, compounded semi-annually through the end of
the Fixed Rate Period. From June 1, 2017 to, but not including, the maturity date hereof (or, if
earlier, until the principal thereof is paid) (the
Floating Rate Period
), the outstanding
principal amount hereof and (to the extent that payment of such interest is enforceable under
applicable law) any Deferred Interest or overdue installment of Interest hereon will bear interest
during each Quarterly Interest Period at the applicable Floating Rate for such Quarterly Interest
Period calculated pursuant to the Indenture, payable (subject to the provisions of the Indenture
more fully described on the reverse hereof that permit the Company to elect to defer payments of
Interest) quarterly in arrears on each March 1, June 1, September 1, and December 1, commencing
September 1, 2017, compounded quarterly at such prevailing Floating Rate through the end of the
Floating Rate Period. Payments of Interest shall be made to the person in whose name the Notes are
registered at the close of business on the record date for such Interest Payment Date, which during
the Fixed Rate Period shall be the May 15 or November 15, as the case may be, immediately preceding
each Interest Payment Date and during the Floating Rate Period shall be the February 15, May 15,
August 15, or November 15, as the case may be, immediately preceding each Interest Payment Date
(each, a
Regular Record Date
).
Reference is made to the further provisions of the Notes set forth on the reverse hereof. Such
further provisions shall for all purposes have the same effect as though fully set forth at this
place.
The statements in the legends set forth in the Notes are an integral part of the terms of the
Notes and by acceptance hereof the Holder of the Notes agrees to be subject to, and bound by, the
terms and provisions set forth in each such legend.
The Notes are a series of Debt Securities designated as the 7.000% Fixed/Floating Rate Junior
Subordinated Notes due 2067 of the Company and are issued under and governed by the Indenture dated
as of October 4, 2004 (as amended by the Tenth Supplemental Indenture thereto, dated as of June 30,
2007, the
Base Indenture
), duly executed and delivered by the Company, as issuer, and
Enterprise Products Partners L.P., as parent guarantor (the
Parent Guarantor
), to Wells
Fargo Bank, National Association, as trustee (the
Trustee
), as supplemented by the
Eighteenth Supplemental Indenture dated as of October 27, 2009, duly executed by the Company, the
Parent Guarantor and the Trustee (the
Eighteenth Supplemental Indenture
, and together
with the Base Indenture, as the same may be further amended or supplemented from time to time, the
Indenture
). The terms of the Indenture are incorporated herein by reference. Any term
defined in the Indenture has the same meaning when used herein.
If and to the extent any provision of the Indenture limits, qualifies, or conflicts with any
other provision of the Indenture that is required to be included in the Indenture or is deemed
applicable to the Indenture by virtue of the provisions of the Trust Indenture Act of 1939, as
amended (the
TIA
), such required provision shall control.
The Company hereby irrevocably undertakes to the Holder hereof to exchange the Notes in
accordance with the terms of the Indenture without charge.
The Notes shall not be valid or become obligatory for any purpose until the Trustees
Certificate of Authentication hereon shall have been manually signed by the Trustee under the
Indenture.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by its sole
manager.
Dated: October 27, 2009
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ENTERPRISE PRODUCTS OPERATING LLC
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By:
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Enterprise Products OLPGP, Inc.,
its Sole Manager
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By:
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Name:
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W. Randall Fowler
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Title:
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Executive Vice President and Chief Financial
Officer
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TRUSTEES CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated herein referred to in the
within-mentioned Indenture.
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
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By:
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Authorized Signatory
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A-3
[REVERSE OF SECURITY]
ENTERPRISE PRODUCTS OPERATING LLC
7.000% FIXED/FLOATING RATE JUNIOR SUBORDINATED NOTES DUE 2067
The Notes are one of a duly authorized issue of Debt Securities of the Company issued under
and pursuant to the Indenture, to which Indenture reference is hereby made for a description of the
rights, limitations of rights, obligations, duties, and immunities thereunder of the Trustee, the
Company, the Parent Guarantor and the Holders of the Debt Securities. The Debt Securities may be
issued in one or more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different rates, may be
subject to different sinking, purchase or analogous funds (if any) and may otherwise vary as
provided in the Indenture. The Notes are of a series designated as the 7.000% Fixed/Floating Rate
Junior Subordinated Notes due 2067 of the Company (the
Notes
).
1.
Interest
.
During the Fixed Rate Period, the outstanding principal amount hereof and (to the extent that
payment of such interest is enforceable under applicable law) any Deferred Interest or overdue
installment of Interest hereon will bear interest at the per annum rate of 7.000% payable (subject
to the provisions of the Indenture relating to Interest deferrals more fully described below)
semi-annually in arrears on June 1 and December 1 of each year commencing on December 1, 2009,
compounded semi-annually through the end of the Fixed Rate Period. During the Floating Rate Period,
the outstanding principal amount hereof and (to the extent that payment of such interest is
enforceable under applicable law) any Deferred Interest or overdue installment of Interest hereon
will bear interest during each Quarterly Interest Period at the applicable Floating Rate for such
Quarterly Interest Period calculated pursuant to the Indenture, payable (subject to the provisions
of the Indenture relating to Interest deferrals more fully described below) quarterly in arrears on
each March 1, June 1, September 1 and December 1, commencing September 1, 2017, compounded
quarterly at such prevailing Floating Rate through the end of the Floating Rate Period.
During the Fixed Rate Period, the amount of Interest payable on any Interest Payment Date will
be computed on the basis of a 360-day year of twelve 30-day months. During the Floating Rate
Period, the amount of any Interest payable on any Interest Payment Date will be computed on the
basis of a 360-day year and the actual number of days elapsed. In the event that any date on which
Interest is payable on this Note is not a Business Day, then a payment of the Interest payable on
such date will, subject to certain exceptions described in the Eighteenth Supplemental Indenture,
be made on the next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), with the same force and effect as if made on the date the
payment was originally payable.
2.
Optional Deferral of Interest.
Subject to the terms of the Indenture, the Company shall have the right, at any time and from
time to time during the term of the Notes, to elect to defer payment of all or any portion of any
Current Interest and/or Deferred Interest otherwise due on the Notes on any Interest Payment Date.
No Interest on the Notes shall be due and payable on any Interest Payment Date during an Optional
Deferral Period; however, Interest shall accrue on the Notes during such period in accordance with
the Eighteenth Supplemental Indenture.
3.
Method of Payment.
The Company shall pay interest on the Notes (except Defaulted Interest) to the persons who are
the registered Holders at the close of business on the Regular Record Date immediately preceding
the Interest Payment Date. The Company shall pay principal, premium, if any, and interest in such
coin or currency of the United States of America as at the time of payment shall be legal tender
for payment of public and private debts. Payments in respect of a Global Security (including
principal, premium, if any, and interest) will be made by wire transfer of immediately available
funds to the accounts specified by the Depositary. Payments in respect of Notes in definitive
A-4
form (including principal, premium, if any, and interest) will be made at the office or agency
of the Company maintained for such purpose within The City of New York, which initially will be the
corporate trust office of Wells Fargo Bank, National Association at 45 Broadway, 14th Floor, New
York, New York 10006, or, at the option of the Company, payment of interest may be made by check
mailed to the Holders on the relevant record date at their addresses set forth in the Debt Security
Register of Holders or at the option of the Holder, payment of interest on Notes in definitive form
will be made by wire transfer of immediately available funds to any account maintained in the
United States, provided such Holder has requested such method of payment and provided timely wire
transfer instructions to the paying agent. The Holder must surrender these Notes to a paying agent
to collect payment of principal.
4.
Paying Agent and Registrar
.
Initially, Wells Fargo Bank, National Association will act as paying agent and Registrar. The
Company may change any paying agent or Registrar at any time upon notice to the Trustee and the
Holders. The Company may act as paying agent.
5.
Indenture
.
The Notes are one of a duly authorized issue of Debt Securities of the Company issued and to
be issued in one or more series under the Indenture.
The terms of the Notes include those stated in the Indenture, those made part of the Indenture
by reference to the TIA, as in effect on the date of the Base Indenture (October 4, 2004), and
those terms stated in the Eighteenth Supplemental Indenture. The Notes are subject to all such
terms, and Holders of Securities are referred to the Indenture, the Eighteenth Supplemental
Indenture and the TIA for a statement of them. The Notes are junior subordinated obligations of the
Company and are not secured by any of the assets of the Company.
6.
Denominations; Transfer; Exchange
.
The Notes are to be issued in registered form, without coupons, in denominations of $1,000 and
integral multiples of $1,000 in excess thereof. A Holder may register the transfer of, or exchange,
Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
7.
Person Deemed Owners
.
The registered Holder of Notes may be treated as the owner of it for all purposes.
8.
Amendment
; Supple
m
ent;
Waiver
.
Subject to certain exceptions, the Indenture may be amended or supplemented, and any existing
Event of Default or compliance with any provision may be waived, with the consent of the Holders of
a majority in principal amount of the Outstanding Notes. Without consent of any Holder of Notes,
the parties thereto may amend or supplement the Indenture to, among other things, cure any
ambiguity or omission, to correct any defect or inconsistency, or to make any other change that
does not adversely affect the rights of any Holder of Notes. Any such consent or waiver by the
Holder of these Notes (unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of these Notes and any Notes which may be
issued in exchange or substitution herefor, irrespective of whether or not any notation thereof is
made upon these Notes or such other Notes.
9.
Defaults and Remedies
.
Certain events of bankruptcy or insolvency respecting the Company are Events of Default that
will result in the principal amount of the Notes, together with premium, if any, and Interest
thereon, becoming due and payable immediately upon the occurrence of such Events of Default. If any
other Event of Default with respect to the Notes
A-5
occurs and is continuing, then in every such case the Trustee or the Holders of not less than
25% in aggregate principal amount of the Notes then Outstanding may declare the principal amount of
all the Notes, together with premium, if any, and Interest thereon, to be due and payable
immediately in the manner and with the effect provided in the Indenture. Notwithstanding the
preceding sentence, at any time after such a declaration of acceleration has been made, the Holders
of a majority in principal amount of the Outstanding Notes, by written notice to the Trustee, may
rescind such declaration and annul its consequences if the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction already rendered and if all Events of
Default with respect to the Notes, other than the nonpayment of the principal, premium, if any, or
Interest which has become due solely by such declaration acceleration, shall have been cured or
shall have been waived. No such rescission shall affect any subsequent default or shall impair any
right consequent thereon. Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require reasonable indemnity or security before it
enforces the Indenture or the Notes. Subject to certain limitations, Holders of a majority in
aggregate principal amount of the Notes then Outstanding may direct the Trustee in its exercise of
any trust or power.
10.
Trustee Dealings with Company
.
The Trustee under the Indenture, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its Affiliates or any subsidiary of
the Companys Affiliates, and may otherwise deal with the Company or its Affiliates as if it were
not the Trustee.
11.
Authentication
.
These Notes shall not be valid until the Trustee signs the certificate of authentication on
the other side of these Notes.
12.
Abbreviations and Defined Terms
.
Customary abbreviations may be used in the name of a Holder of Notes or an assignee, such as:
TEN COM (tenant in common), TEN ENT (tenants by the entireties), JT TEN (joint tenants with right
of survivorship and not as tenants in common), CUST (Custodian), and U/G/M/A (Uniform Gifts to
Minors Act).
13.
CUSIP Numbers
.
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Notes as a convenience to the
Holders of the Notes. No representation is made as to the accuracy of such number as printed on the
Notes and reliance may be placed only on the other identification numbers printed hereon.
14.
Absolute Obligation
.
No reference herein to the Indenture and no provision of the Notes or the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on these Notes in the manner, at the respective times,
at the rate and in the coin or currency herein prescribed.
15.
No Recourse
.
The general partner of the Parent Guarantor and its directors, officers, employees, and
members, as such, shall have no liability for any obligations of any Guarantor or the Company under
the Notes, the Indenture, or any Guarantee or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting the Notes waives and releases all
such liability. The waiver and release are part of the consideration for issuance of the Notes.
A-6
16.
Ranking
.
The Notes rank junior and subordinate in rank and priority of payment to all of the Companys
Senior Indebtedness as more fully provided in Article XII of the Base Indenture and Article VI of
the Eighteenth Supplemental Indenture. The Notes are equal in rank and right of payment in all
respects and are
pari passu
with the Companys 8.375% Fixed/Floating Rate Junior Subordinated Notes
due 2066 and 7.034% Fixed/Floating Rate Junior Subordinated Notes due 2068.
17.
Optional Redemption
.
The Notes are subject to redemption prior to maturity at the redemption price and in the
manner provided in the Indenture and the Eighteenth Supplemental Indenture.
18.
Governing Law
.
The Notes shall be construed in accordance with and governed by the laws of the State of New
York.
19.
Guarantee
.
Subject to Article XII of the Base Indenture and Articles VI and VII of the Eighteenth
Supplemental Indenture, the Notes are fully and unconditionally guaranteed on an unsecured basis by
the Parent Guarantor. The Parent Guarantors obligations under the Guarantee rank junior and
subordinate in rank and priority of payment to all of the Parent Guarantors Senior Indebtedness.
The Parent Guarantors obligation under the Guarantee is equal in rank and right of payment in all
respects and is
pari passu
with the Parent Guarantors guarantees of the Companys 8.375%
Fixed/Floating Rate Junior Subordinated Notes due 2066 and 7.034% Fixed/Floating Rate Junior
Subordinated Notes due 2068.
20.
Reliance
.
The Holder, by accepting these Notes, acknowledges (a) that such Holder has acquired Notes in
reliance upon the separateness of the Company, the sole manager of the Company and the Parent
Guarantor from one another and from any other Persons, including any Affiliates thereof, (b) that
the Company, the sole manager of the Company and the Parent Guarantor have assets and liabilities
that are separate from those of one another and from those of other persons, including any
Affiliates thereof, (c) that the Notes and other obligations owing under the Notes have not been
guaranteed by any Person, other than the Parent Guarantor and only to the extent explicitly set
forth herein, and (d) that, except in respect of the Parent Guarantor and as other Persons may
expressly assume or guarantee any of the Notes or obligations thereunder, the Holder shall look
solely to the Company and its property and assets for the payment of any amounts payable pursuant
to the Notes and for satisfaction of any obligations owing to the Holder.
A-7
NOTATION OF GUARANTEE
Subject to Article XII of the Base Indenture and Articles VI and VII of the Eighteenth
Supplemental Indenture, the Parent Guarantor (which term includes any successor Person under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Notes and all other amounts due and payable
(subject to the right of the Company to defer Interest payments on the terms and conditions set
forth in Section 4.1 of the Eighteenth Supplemental Indenture) under the Indenture by the Company.
The Parent Guarantors obligations under such guarantee rank junior and subordinate in rank and
priority of payment to all of the Parent Guarantors Senior Indebtedness and constitute a guarantee
of Subordinated Debt Securities for all purposes under the Indenture.
The obligations of the Parent Guarantor to the Holders of Securities and to the Trustee
pursuant to its Guarantee and the Indenture are expressly set forth in Article XIV of the Base
Indenture, and are subject to the provisions of Article XII of the Base Indenture and Section 7.2
of the Eighteenth Supplemental Indenture, and reference is hereby made to such documents for the
precise terms of the Guarantee.
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ENTERPRISE PRODUCTS PARTNERS L.P.
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By:
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Enterprise Products GP, LLC,
its General Partner
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By:
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Name:
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W. Randall Fowler
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Title:
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Executive Vice President and Chief Financial
Officer
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A-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:
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TEN COM
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as tenants in common
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UNIF GIFT MIN ACT
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(Cust.)
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TEN ENT
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as tenants by entireties
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Custodian for:
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(Minor)
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Under Uniform Gifts to Minors Act of
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JT TEN
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as joint tenants with right
of survivorship and not as tenants in
common
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(State)
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Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Please print or type name and address including postal zip code of assignee
the within Security and all rights thereunder, hereby irrevocably constituting and appointing
to transfer said Security on the books of the Partnership, with full power of substitution in the
premises.
A-9
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITIES*
The following increases or decreases in this Global Security have been made:
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Amount of
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Amount of
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Principal Amount
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Decrease in
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Increase in
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of this Global
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Signature of
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Principal
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Principal Amount
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Security following
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authorized officer
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Amount of this
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of this
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such decrease
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of Trustee or
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Date of Exchange
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Global Security
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Global Security
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(or increase)
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Depositary
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*
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To be included in a Book-Entry Note.
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A-10
Exhibit 4.9
Replacement Capital Covenant
, dated as of October 27, 2009 (this
Replacement Capital
Covenant
), by and among Enterprise Products Operating LLC, a Texas limited liability company
(together with its successors and assigns, the
Company
), and Enterprise Products Partners
L.P., a Delaware limited partnership (together with its successors and assigns, the
Guarantor
and, together with the Company and the respective Subsidiaries of the Company
and the Guarantor, the
Company Group
), in favor of and for the benefit of each Covered
Debtholder (as defined below).
Recitals
A. On the date hereof, the Company is issuing $285,759,000 aggregate principal amount of its
7.000% Fixed/Floating Rate Junior Subordinated Notes due 2067 (the
Subordinated Notes
),
which Subordinated Notes were issued pursuant to, and fully and unconditionally guaranteed by the
Guarantor in accordance with, the Subordinated Indenture, dated as of October 4, 2004, as
supplemented by the Tenth Supplemental Indenture dated as of June 30, 2007 and the Eighteenth
Supplemental Indenture dated as of October 27, 2009 (together, the
Subordinated
Indenture
), among the Company, the Guarantor, and Wells Fargo Bank, National Association, as
trustee.
B. This Replacement Capital Covenant is the
Replacement Capital Covenant
referred to
in the Registration Statement on Form S-4 (Registration No. 333-162091) of the Company and the
Guarantor declared effective by the Securities and Exchange Commission on October 7, 2009.
C. The Company and the Guarantor, in entering into and disclosing the content of this
Replacement Capital Covenant in the manner provided below, are doing so with the intent that the
covenants provided for in this Replacement Capital Covenant be enforceable by each Covered
Debtholder and that the Company and the Guarantor be estopped from breaching the covenants in this
Replacement Capital Covenant, in each case to the fullest extent permitted by applicable law.
D. The Company and the Guarantor acknowledge that reliance by each Covered Debtholder upon the
covenants in this Replacement Capital Covenant is reasonable and foreseeable by the Company and the
Guarantor and that the breach by the Company or the Guarantor of such covenants could result in
injury or damages to a Covered Debtholder.
NOW, THEREFORE, the Company and the Guarantor hereby covenant and agree as follows in favor of
and for the benefit of each Covered Debtholder.
SECTION 1.
Definitions
. Capitalized terms used in this Replacement Capital Covenant
(including the Recitals) have the meanings set forth in Schedule I hereto.
SECTION 2.
Limitations on Redemption, Repurchase, Defeasance or Purchase of Subordinated
Notes
. The Company and the Guarantor hereby promise and covenant to and for the benefit of
each Covered Debtholder that the Company shall not redeem or repurchase, or defease or discharge
through the deposit of money and/or U.S. Government Obligations as contemplated by Article XI of
the Subordinated Indenture (herein referred to as
defeasance
),
any portion of the principal amount of the Subordinated Notes, and the Company and the
Guarantor shall not purchase and shall cause their respective Subsidiaries not to purchase, all or
any part of the Subordinated Notes, in each case, on or before the Termination Date, except to the
extent that the principal amount repaid or defeased or the applicable repurchase, redemption or
purchase price does not exceed the sum of the following amounts:
(i) the Applicable Percentage of (a) the aggregate amount of the net cash proceeds any
member of the Company Group has received from the sale of Common Units and Subordinated
Units and Rights to acquire Units; and (b) the Market Value of any of the Common Units or
Subordinated Units that have been issued in connection with the conversion into or exchange
for Common Units or Subordinated Units of any convertible or exchangeable securities, other
than, in the case of clause (b), where the security into or for which such Common Units or
Subordinated Units are convertible or exchangeable has received equivalent equity credit
from any NRSRO;
plus
(ii) the aggregate amount of net cash proceeds a member of the Company Group has
received from the sale of Replacement Capital Securities (other than the securities set
forth in clause (i) above);
in each case, to Persons other than a member of the Company Group within the applicable Measurement
Period (it being understood that any such net cash proceeds or Market Value shall be applied only
once to the redemption, repurchase, defeasance or purchase of Subordinated Notes, that the earliest
net cash proceeds or Market Value in any Measurement Period shall be deemed applied first to any
such redemption, repurchase, defeasance or purchase, and that any net cash proceeds or Market Value
not so applied shall continue to be available in any other Measurement Period within which it
falls);
provided
that the limitations in this Section 2 shall not restrict the redemption,
repurchase, defeasance or purchase of any Subordinated Notes that have been previously repurchased,
defeased or purchased in accordance with this Replacement Capital Covenant.
SECTION 3.
Covered Debt
.
(a) The Company and the Guarantor represent and warrant that the Initial Covered Debt is
Eligible Debt.
(b) On or during the 30-day period immediately preceding any Redesignation Date with respect
to the Covered Debt then in effect, the Company shall identify the series of Eligible Debt that
will become the Covered Debt on and after such Redesignation Date in accordance with the following
procedures:
(i) the Company shall identify each series of then outstanding long-term indebtedness
for money borrowed that is Eligible Debt of the Company or, if the Company does not have any
Eligible Debt outstanding, of the Guarantor;
(ii) if only one series of such then outstanding long-term indebtedness for money
borrowed is Eligible Debt, such series shall become the Covered Debt commencing on such
Redesignation Date;
2
(iii) if the Company or the Guarantor, as applicable, has more than one outstanding
series of long-term indebtedness for money borrowed that is Eligible Debt, then the Company
shall identify the series that has the latest occurring final maturity date as of the date
the Company is applying the procedures in this Section 3(b) and such series shall become the
Covered Debt on such Redesignation Date;
(iv) the series of outstanding long-term indebtedness for money borrowed that is
determined to be Covered Debt pursuant to clause (ii) or (iii) above shall be the Covered
Debt for purposes of this Replacement Capital Covenant for the period commencing on such
Redesignation Date and continuing to but not including the Redesignation Date as of which a
new series of outstanding long-term indebtedness is next determined to be the Covered Debt
pursuant to the procedures set forth in this Section 3(b); and
(v) in connection with such identification of a new series of Covered Debt, the Company
and the Guarantor shall give the notice provided for in Section 3(c) within the time frame
provided for in such section.
Notwithstanding any other provisions of this Replacement Capital Covenant, if a series of
Eligible Senior Debt of the Company or any Guarantor has become the Covered Debt in accordance with
this Section 3(b), on the date on which the issuer of such Covered Debt issues a new series of
Eligible Subordinated Debt, then immediately upon such issuance such new series of Eligible
Subordinated Debt shall become the Covered Debt and the applicable series of Eligible Senior Debt
shall cease to be the Covered Debt.
(c)
Notice
. In order to give effect to the intent of the Company and the Guarantor
described in Recital C, the Company and the Guarantor covenant that (i) simultaneously with the
execution of this Replacement Capital Covenant or as soon as practicable after the date hereof
(x) notice shall be given to the Holders of the Initial Covered Debt and the trustee under the
indenture or other instrument establishing such debt, in the manner provided in the indenture or
such instrument, of this Replacement Capital Covenant and the rights granted to such Holders
hereunder and (y) the Guarantor shall file a copy of this Replacement Capital Covenant with the
Commission as an exhibit to a Current Report on Form 8-K under the Securities Exchange Act; (ii) so
long as the Guarantor is a reporting issuer under the Securities Exchange Act, the Guarantor shall
include in each annual report filed after the date hereof with the Commission on Form 10-K under
the Securities Exchange Act a description of the covenant set forth in Section 2 and identify the
series of long-term indebtedness for money borrowed that is Covered Debt as of the date such Form
10-K is filed with the Commission; (iii) if a series of the long-term indebtedness for money
borrowed of the Company or the Guarantor (1) becomes Covered Debt or (2) ceases to be Covered Debt,
the Company and the Guarantor shall give notice of such occurrence within 30 days to the Holders of
such long-term indebtedness for money borrowed in the manner provided for in the indenture or other
instrument under which such long-term indebtedness for money borrowed was issued and the Guarantor
shall report such change in a Current Report on Form 8-K (which shall include or incorporate by
reference this Replacement Capital Covenant) and in the Guarantors next quarterly report on Form
10-Q or annual report on Form 10-K, as applicable; (iv) if, and only if, the Guarantor ceases to be
a reporting company under the Securities Exchange Act, the Guarantor shall (A) post on its website
the information otherwise required to be included in Securities Exchange Act filings pursuant to
clauses (ii) and
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(iii) of this Section 3(c) and (B) cause a notice of the existence of this Replacement Capital
Covenant to be posted on the Bloomberg screen for the Covered Debt or any successor Bloomberg
screen and each similar third-party vendors screen the Guarantor reasonably believes is
appropriate (each an Investor Screen) and use its commercially reasonable efforts to cause a
hyperlink to a definitive copy of this Replacement Capital Covenant to be included on the Investor
Screen for each series of Covered Debt, in each case to the extent permitted by Bloomberg or such
similar third-party vendor, as the case may be; and (v) promptly upon request by any Holder of
Covered Debt, such Holder will be provided with an executed copy of this Replacement Capital
Covenant.
SECTION 4.
Termination, Amendment and Waiver
. (a) The obligations of the Company and
the Guarantor pursuant to this Replacement Capital Covenant shall remain in full force and effect
until the earliest date (the
Termination Date
) to occur of (i) 12:00 a.m. (New York, New
York time) on June 1, 2037, or if earlier, the date on which the Subordinated Notes are otherwise
paid, redeemed, defeased or purchased in full in accordance with this Replacement Capital Covenant,
(ii) the date, if any, on which the Holders of a majority by principal amount of the then-effective
series of Covered Debt consent or agree in writing to the termination of this Replacement Capital
Covenant and the obligations of the Company and the Guarantor hereunder, (iii) the date on which
none of the Company or the Guarantor has any series of outstanding Eligible Senior Debt or Eligible
Subordinated Debt (in each case without giving effect to the rating requirement in clause (b) of
the definition of each such term) and (iv) the date on which the Subordinated Notes are accelerated
as a result of an event of default under the Subordinated Indenture. From and after the
Termination Date, the obligations of the Company and the Guarantor pursuant to this Replacement
Capital Covenant shall be of no further force and effect.
(b) This Replacement Capital Covenant may be amended or supplemented from time to time by a
written instrument signed by the Company and the Guarantor with the consent of the Holders of a
majority by principal amount of the then-effective series of Covered Debt,
provided
that
this Replacement Capital Covenant may be amended or supplemented from time to time by a written
instrument signed only by the Company and the Guarantor (and without the consent of any Holders of
the then-effective series of Covered Debt) if any of the following apply (it being understood that
any such amendment or supplement may fall into one or more of the following):
(i) such amendment or supplement eliminates Common Units or Subordinated Units (or
Rights to acquire Units) as Replacement Capital Securities, if either (A) the Guarantor has
been advised in writing by a nationally recognized independent accounting firm that or (B)
an accounting standard or interpretive guidance of an existing accounting standard by an
organization or regulator that has responsibility for establishing or interpreting
accounting standards in the United States becomes effective such that, in each case, there
is more than an insubstantial risk that the failure to do so would result in a reduction in
the Guarantors earnings per Common Unit or Subordinated Unit as calculated for financial
reporting purposes,
(ii) the effect of such amendment or supplement is solely to impose additional
restrictions on the ability of a member of the Company Group to redeem, repurchase, defease
or purchase the Subordinated Notes or to impose additional restrictions on, or to eliminate
certain of, the types of securities qualifying as Replacement Capital Securities and the
Company and the Guarantor has delivered to the Holders of the then-effective
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series of Covered Debt in the manner provided for in the indenture or other instrument
with respect to such Covered Debt a written certificate to that effect executed on its
behalf by an officer of its general partner,
(iii) such amendment or supplement extends the date specified in Section 4(a)(i), the
Stepdown Date or both, or
(iv) such amendment or supplement is not adverse to the rights of the Covered
Debtholders hereunder and the Company and the Guarantor has delivered to the Holders of the
then-effective series of Covered Debt in the manner provided for in the indenture or other
instrument with respect to such Covered Debt a written certificate executed on its behalf by
an officer of its general partner stating that the Company and the Guarantor have determined
that such amendment or supplement is not adverse to the Covered Debtholders. For the
avoidance of doubt, an amendment or supplement that adds new types of Replacement Capital
Securities or modifies the requirements of the Replacement Capital Securities described
herein would not be adverse to the rights of the Covered Debtholders if, following such
amendment or supplement, this Replacement Capital Covenant would satisfy clause (ii)(b) of
the definition of Qualifying Replacement Capital Covenant.
(c) For purposes of Sections 4(a) and 4(b), the Holders whose consent or agreement is required
to terminate, amend or supplement this Replacement Capital Covenant or the obligations of the
Company hereunder shall be the Holders of the then-effective Covered Debt as of a record date
established by the Company that is not more than 60 days prior to the date on which the Company
proposes that such termination, amendment or supplement becomes effective.
SECTION 5.
Miscellaneous
. (a)
This Replacement Capital Covenant shall be governed by
and construed in accordance with the laws of the State of New York
.
(b) This Replacement Capital Covenant shall be binding upon the Company and the Guarantor and
their respective successors and assigns and shall inure to the benefit of the Covered Debtholders
as they exist from time-to-time (it being understood and agreed by the Company and the Guarantor
that any Person who is a Covered Debtholder, if such Person initiates a claim or proceeding to
enforce its rights under this Replacement Capital Covenant after the Company or the Guarantor has
violated its covenants in Section 2 and before the series of long-term indebtedness for money
borrowed held by such Person is no longer Covered Debt, such Persons rights under this Replacement
Capital Covenant shall not terminate by reason of such series of long-term indebtedness for money
borrowed no longer being Covered Debt until the termination of such claim or proceeding). If at
any time the Covered Debt is held by a trust (for example, where the Covered Debt is part of a an
issuance of trust preferred securities), a holder of the securities issued by such trust may
enforce (including by instituting legal proceedings) this Replacement Capital Covenant directly
against the Company and the Guarantor as if such holder owned the Covered Debt Directly, and the
holders of such trust securities shall be deemed Holders of Covered Debt for purposes of this
Replacement Capital Covenant for so long as the indebtedness held by such trust remains Covered
Debt hereunder. Other than the Covered Debtholders as provided in the previous two sentences, no
other Person shall have any rights under this Replacement Capital Covenant or be deemed a third
party
5
beneficiary of or entitled to rely on this Replacement Capital Covenant. In particular, no
holder of the Subordinated Notes is a third party beneficiary of this Replacement Capital Covenant,
it being understood that the rights of the holders of the notes are set forth in the Subordinated
Indenture.
(c) All demands, notices, requests and other communications to the Company or the Guarantor
under this Replacement Capital Covenant shall be deemed to have been duly given and made if in
writing and (i) if served by personal delivery upon the Company or the Guarantor, on the day so
delivered (or, if such day is not a Business Day, the next succeeding Business Day), (ii) if
delivered by registered post or certified mail, return receipt requested, or sent to the Company or
the Guarantor by a national or international courier service, on the date of receipt by the Company
or the Guarantor, as applicable (or, if such date of receipt is not a Business Day, the next
succeeding Business Day), or (iii) if sent by telecopier, on the day telecopied, or if not a
Business Day, the next succeeding Business Day,
provided
that the telecopy is promptly
confirmed by telephone confirmation thereof, and in each case to the Company or the Guarantor at
the address set forth below, or at such other address as the Company may thereafter notify to
Covered Debtholders or post on its website as the address for notices under this Replacement
Capital Covenant:
If to the Company, to:
Enterprise Products Operating LLC
1100 Louisiana Street, 18th Floor
Houston, Texas 77002
Attention: Chief Legal Officer
Telecopy No.: (713) 803-2905
Telephone: (713) 381-6500
If to the Guarantor, to:
Enterprise Products Partners L.P.
1100 Louisiana Street, 18th Floor
Houston, Texas 77002
Attention: Chief Legal Officer
Telecopy No.: (713) 803-2905
Telephone: (713) 381-6500
6
IN WITNESS WHEREOF, the Company and the Guarantor have caused this Replacement Capital
Covenant to be executed by a duly authorized officer, as of the day and year first above written.
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ENTERPRISE PRODUCTS OPERATING LLC
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By: Enterprise Products OLPGP, Inc.
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Its: Sole Manager
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By:
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/s/ W. Randall Fowler
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W. Randall Fowler
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Executive Vice President and
Chief Financial Officer
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ENTERPRISE PRODUCTS PARTNERS L.P.
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By: Enterprise Products GP, LLC
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Its: General Partner
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By:
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/s/ W. Randall Fowler
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W. Randall Fowler
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Executive Vice President and
Chief Financial Officer
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Replacement Capital Covenant Signature Page
Definitions
Alternative Payment Mechanism
means, with respect to any Qualifying Capital
Securities, provisions in the related transaction documents that require the issuer thereof, in its
discretion, to issue (or use commercially reasonable efforts to issue) one or more types of APM
Qualifying Securities raising eligible proceeds at least equal to the deferred Distributions on
such Qualifying Capital Securities and apply the proceeds to pay unpaid Distributions on such
Qualifying Capital Securities, commencing on the earlier of (x) the first Distribution Date after
commencement of a deferral period on which such issuer pays current Distributions on such
Qualifying Capital Securities and (y) the fifth anniversary of the commencement of such deferral
period, and that:
(a) define eligible proceeds to mean, for purposes of such Alternative Payment
Mechanism, the net proceeds (after underwriters or placement agents fees, commissions or
discounts and other expenses relating to the issuance or sale) that such issuer has received
during the 180 days prior to the related Distribution Date from the issuance of APM
Qualifying Securities to Persons other than a member of the Company Group, up to the
Preferred Cap (as defined in (d) below) in the case of APM Qualifying Securities that are
Qualifying Preferred Units;
(b) permit such issuer to pay current Distributions on any Distribution Date out of any
source of funds but (x) require such issuer to pay deferred Distributions only out of
eligible proceeds and (y) prohibit such issuer from paying deferred Distributions out of any
source of funds other than eligible proceeds;
(c) if deferral of Distributions continues for more than one year, require such issuer
or any of its Subsidiaries not to redeem, repurchase or purchase any securities that rank
pari passu
with or junior to any APM Qualifying Securities that such issuer has issued to
settle deferred Distributions in respect to that deferral period until at least one year
after all deferred Distributions have been paid (a
Repurchase Restriction
);
(d) limit the obligation of such issuer to issue (or use commercially reasonable
efforts to issue) APM Qualifying Securities to:
(i) in the case of APM Qualifying Securities that are Common Units or
Subordinated Units and Rights to acquire Units, either (i) during the first five
years of any deferral period or (ii) with respect to deferred Distributions
attributable to the first five years of any deferral period (provided that such
limitation shall not apply after the ninth anniversary of the commencement of any
deferral period), to a number of Common Units, Subordinated Units and Units
purchasable upon the exercise of any Rights to acquire Units, which does not, in the
aggregate, exceed 2% of the outstanding number of Common Units and Subordinated
Units (the
Common Cap
); and
(ii) in the case of APM Qualifying Securities that are Qualifying Preferred
Units, an amount from the issuance thereof pursuant to the related Alternative
Payment Mechanism (including at any point in time from all prior
1
issuances thereof pursuant to such Alternative Payment Mechanism) equal to 25%
of the liquidation or principal amount of the Qualifying Capital Securities that are
the subject of the related Alternative Payment Mechanism (the
Preferred
Cap
);
(e) in the case of Qualifying Capital Securities other than Qualifying Preferred Units,
include a Bankruptcy Claim Limitation Provision; and
(f) permit such issuer, at its option, to provide that if such issuer is involved in a
merger, consolidation, amalgamation, binding unit exchange or conveyance, transfer or lease
of assets substantially as an entirety to any other person or a similar transaction (a
business combination
) where immediately after the consummation of the business
combination more than 50% of the surviving or resulting entitys voting securities is owned
by the equityholders of the other party to the business combination, then clauses (a), (b)
and (c) above will not apply to any deferral period that is terminated on the next
Distribution Date following the date of consummation of the business combination;
provided
(and it being understood) that:
(i) the Alternative Payment Mechanism may at the discretion of such issuer include a
unit cap limiting the issuance of APM Qualifying Securities consisting of Common Units, or
Subordinated Units and Qualifying Warrants, in each case to a maximum issuance cap to be set
at the discretion of such issuer;
provided
that such maximum issuance cap will be
subject to such issuers agreement to use commercially reasonable efforts to increase the
maximum issuance cap when reached and (i) simultaneously satisfy their future fixed or
contingent obligations under other securities and derivative instruments that provide for
settlement or payment in Common Units or Subordinated Units or (ii) if such issuer cannot
increase the maximum issuance cap as contemplated in the preceding clause, by requesting its
Board to adopt a resolution for unitholder vote at the next occurring annual unitholders
meeting to increase the number of units of such issuers authorized Common Units or
Subordinated Units for purposes of satisfying their obligations to pay deferred
Distributions;
(ii) such issuer shall not be obligated to issue (or use commercially reasonable
efforts to issue) APM Qualifying Securities for so long as a Market Disruption Event has
occurred and is continuing;
(iii) if, due to a Market Disruption Event or otherwise, such issuer is able to raise
and apply some, but not all, of the eligible proceeds necessary to pay all deferred
Distributions on any Distribution Date, such issuer will apply any available eligible
proceeds to pay accrued and unpaid Distributions on the applicable Distribution Date in
chronological order subject to the Common Cap, the Preferred Cap, and any maximum issuance
cap referred to above, as applicable; and
(iv) if such issuer has outstanding more than one class or series of securities under
which it is obligated to sell a type of APM Qualifying Securities and apply some part of the
proceeds to the payment of deferred Distributions, then on any date and for any period the
amount of net proceeds received by such issuer from those sales and
2
available for payment of deferred Distributions on such securities shall be applied to
such securities on a
pro rata
basis up to the Common Cap, the Preferred Cap and any maximum
issuance cap referred to above, as applicable, in proportion to the total amounts that are
due on such securities.
APM Qualifying Securities
means, with respect to an Alternative Payment Mechanism,
any Debt Exchangeable for Preferred Equity or any Mandatory Trigger Provision, one or more of the
following (as designated in the transaction documents for any Qualifying Capital Securities that
include an Alternative Payment Mechanism or a Mandatory Trigger Provision or for any Debt
Exchangeable for Preferred Equity):
(a) Common Units or Subordinated Units; or
(b) Qualifying Warrants; and
(c) Qualifying Preferred Units;
provided
that, if the APM Qualifying Securities for any Alternative Payment Mechanism, any
Debt Exchangeable for Preferred Equity or any Mandatory Trigger Provision include both Common
Units, Subordinated Units and Qualifying Warrants, such Alternative Payment Mechanism, Debt
Exchangeable for Preferred Equity or Mandatory Trigger Provision may permit, but need not require,
the issuer thereof to issue Qualifying Warrants.
Applicable Percentage
means 200% with respect to any redemption, repurchase,
purchase or defeasance of Subordinated Notes prior to the Termination Date.
Bankruptcy Claim Limitation Provision
means, with respect to any Qualifying Capital
Securities that have an Alternative Payment Mechanism or a Mandatory Trigger Provision, provisions
that, upon any liquidation, dissolution, winding up or reorganization or in connection with any
insolvency, receivership or proceeding under any bankruptcy law with respect to the issuer, limit
the claim of the holders of such Qualifying Capital Securities to Distributions that accumulate
during (a) any deferral period, in the case of Qualifying Capital Securities that have an
Alternative Payment Mechanism or (b) any period in which the issuer fails to satisfy one or more
financial tests set forth in the terms of such securities or related transaction agreements, in the
case of Qualifying Capital Securities having a Mandatory Trigger Provision, to:
(i) in the case of Qualifying Capital Securities having an Alternative Payment
Mechanism or Mandatory Trigger Provision with respect to which the APM Qualifying Securities
do not include Qualifying Preferred Units, 25% of the stated or principal amount of such
securities then outstanding; and
(ii) in the case of any other Qualifying Capital Securities, an amount not in excess of
the sum of (x) the amount of accumulated and unpaid Distributions (including compounded
amounts) that relate to the earliest two years of the portion of the deferral period for
which Distributions have not been paid and (y) an amount equal to the excess, if any, of the
Preferred Cap over the aggregate amount of net proceeds from the sale of Qualifying
Preferred Units that the issuer has applied to pay such Distributions pursuant to the
Alternative Payment Mechanism or the Mandatory Trigger Provision,
provided
that
3
the holders of such securities are deemed to agree that, to the extent the remaining
claim exceeds the amount set forth in subclause (x), the amount they receive in respect of
such excess shall not exceed the amount they would have received had the claim for such
excess ranked
pari passu
with the interests of the holders, if any, of Qualifying Preferred
Units.
Board
means, with respect to a Person, the board of directors (or other comparable
governing body) of the general partner of such Person or a duly constituted committee thereof. If
such Person shall change its form of entity to other than a limited partnership, references to the
Board shall mean the board of directors (or other comparable governing body) of such Person (as so
changed).
Business Day
means each day other than (a) a Saturday or Sunday or (b)(i) a day on
which banking institutions in The City of New York are authorized or required by law or executive
order to remain closed or, (ii) a day on or after June 1
,
2017, that is not a London business day.
A
London business day
is any day on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
Commission
means the United States Securities and Exchange Commission.
Common Cap
has the meaning specified in the definition of Alternative Payment
Mechanism.
Common Units
means (i) common limited partnership interests of any member of the
Company Group, including, without limitation, those interests described as common units in the
Companys or the Guarantors respective partnership agreement and interests sold pursuant to
distribution reinvestment plans, unit purchase plans and employee benefit plans, and (ii) interests
of any member of the Company Group possessing substantially similar characteristics,
provided
that such interests (A) are perpetual, with no prepayment obligation on the part
of the issuer thereof, whether at the election of the holder or otherwise, and (B) other than any
Subordinated Units, are (at the time of issuance and thereafter) the most junior and subordinated
securities issuable by such issuer, with liquidation rights limited to a share of such issuers
assets, if any, remaining after satisfaction in full of all creditors and of all holders of any
other equity securities of such issuer that rank senior to the Common Units.
Company
has the meaning specified in the introduction to this instrument.
Company Group
has the meaning specified in the introduction to this instrument.
Covered Debt
means (a) at the date of this Replacement Capital Covenant and
continuing to but not including the first Redesignation Date, the Initial Covered Debt and
(b) thereafter, commencing with each Redesignation Date and continuing to but not including the
next succeeding Redesignation Date, the Eligible Debt identified pursuant to Section 3(b) as the
Covered Debt for such period.
Covered Debtholder
means each Person (whether a Holder or a beneficial owner holding
through a participant in a clearing agency) that buys, holds or sells long-term indebtedness for
money borrowed of the Company during the period that such long-term
4
indebtedness for money borrowed is Covered Debt, for so long as such long-term indebtedness
for money borrowed remains Covered Debt (except as otherwise provided in Section 5(b)),
provided
that a Person who has sold or otherwise disposed of all of its right, title and
interest in Covered Debt shall cease to be a Covered Debtholder at the time of such sale or other
disposition if, during the time that such Person owned such Covered Debt, the Company did not
breach or repudiate its obligations hereunder. If the Company breached or repudiated its
obligations hereunder while such Person was an owner of Covered Debt, such Person shall cease to be
a Covered Debtholder on the later of (i) one year after such sale or other disposition or (ii) the
termination of any legal proceeding brought by such Person before the date in clause (i) to enforce
the obligations of the Company hereunder.
Debt Exchangeable for Equity
means Debt Exchangeable for Common Equity or Debt
Exchangeable for Preferred Equity.
Debt Exchangeable for Common Equity
means a security or combination of securities
(together in this definition,
such securities
) that:
(a) gives the holder a beneficial interest in (i) a fractional interest in a unit
purchase contract for a Common Unit or Subordinated Unit that will be settled in three years
or less, with the number of Common Units or Subordinated Units purchasable pursuant to such
unit purchase contract to be within a range established at the time of issuance of such
securities, subject to customary anti-dilution adjustments and (ii) debt securities of any
member of the Company Group that are not redeemable at the option of the issuer or the
holder thereof prior to the settlement of the unit purchase contracts;
(b) provides that the investors directly or indirectly grant to the issuer of such
securities a security interest in such debt securities and their proceeds (including any
substitute collateral permitted under the transaction documents) to secure the investors
direct or indirect obligation to purchase Common Units or Subordinated Units pursuant to
such unit purchase contracts;
(c) includes a remarketing feature pursuant to which such debt securities are
remarketed to new investors commencing not later than 30 days prior to the settlement date
of the purchase contract;
(d) provides for the proceeds raised in the remarketing to be used to purchase Common
Units or Subordinated Units under the unit purchase contracts and, if there has not been a
successful remarketing by the settlement date of the purchase contract, provides that the
unit purchase contracts will be settled by the issuer of such securities exercising its
remedies as a secured party with respect to its debt securities or other collateral directly
or indirectly pledged by investors in the Debt Exchangeable for Common Equity.
Debt Exchangeable for Preferred Equity
means a security or combination of securities
(together in this definition,
such securities
) that:
(a) gives the holder a beneficial interest in (i) subordinated debt securities of a
member of the Company Group that include a provision requiring the issuer thereof to
5
issue (or use commercially reasonable efforts to issue) one or more types of APM
Qualifying Securities raising proceeds at least equal to the deferred Distributions on such
subordinated debt securities commencing not later than the second anniversary of the
commencement of such deferral period and that are the most junior subordinated debt of such
issuer (or rank
pari passu
with the most junior subordinated debt of such issuer) (in this
definition,
subordinated debt
) and (ii) a fractional interest in a unit purchase
contract for a share of Qualifying Preferred Units of such issuer that ranks
pari passu
with
or junior to all other preferred units of such issuer (in this definition,
preferred
units
);
(b) provides that the investors directly or indirectly grant to such issuer a security
interest in such subordinated debt securities and their proceeds (including any substitute
collateral permitted under the transaction documents) to secure the investors direct or
indirect obligation to purchase preferred units of such issuer pursuant to such unit
purchase contracts;
(c) includes a remarketing feature pursuant to which the subordinated debt of such
issuer is remarketed to new investors commencing not later than the first Distribution Date
that is at least five years after the date of issuance of securities or earlier in the event
of an early settlement event based on: (i) the dissolution of the issuer of such debt
exchangeable for preferred equity or (ii) one or more financial tests set forth in the terms
of the instrument governing such debt exchangeable for preferred equity;
(d) provides for the proceeds raised in the remarketing to be used to purchase
preferred units of such issuer under the unit purchase contracts and, if there has not been
a successful remarketing by the first Distribution Date that is six years after the date of
issuance of such securities, provides that the unit purchase contracts will be settled by
such issuer exercising its remedies as a secured party with respect to its subordinated debt
securities or other collateral directly or indirectly pledged by investors in the Debt
Exchangeable for Preferred Equity;
(e) is subject to a Qualifying Capital Replacement Covenant that will apply to such
securities and preferred units, and will not include Debt Exchangeable for Equity as a
Replacement Capital Security; and
(f) after the issuance of such preferred units, provides the holders of such securities
with a beneficial interest in such preferred units.
Distribution Date
means, as to any securities or combination of securities, the
dates on which periodic Distributions on such securities are scheduled to be made.
Distribution Period
means, as to any securities or combination of securities, each
period from and including a Distribution Date for such securities to but not including the next
succeeding Distribution Date for such securities.
Distributions
means, as to a security or combination of securities, interest
payments or other income distributions to the holders thereof that are not Subsidiaries of the
issuer thereof.
6
Eligible Debt
means, at any time, Eligible Subordinated Debt or, if no Eligible
Subordinated Debt is then outstanding, Eligible Senior Debt.
Eligible Senior Debt
means, at any time in respect of any issuer, each series of
outstanding unsecured long-term indebtedness for money borrowed of such issuer that (a) upon a
bankruptcy, liquidation, dissolution or winding up of the issuer, ranks most senior among the
issuers then outstanding classes of unsecured indebtedness for money borrowed, (b) is then
assigned a rating by at least one NRSRO (provided that this clause (b) shall apply on a
Redesignation Date only if on such date the issuer has outstanding senior long-term indebtedness
for money borrowed that satisfies the requirements of clauses (a), (c) and (d) that is then
assigned a rating by at least one NRSRO), (c) has an outstanding principal amount of not less than
$100,000,000, and (d) was issued through or with the assistance of a commercial or investment
banking firm or firms acting as underwriters, initial purchasers or placement or distribution
agents. For purposes of this definition as applied to securities with a CUSIP number, each
issuance of long-term indebtedness for money borrowed that has (or, if such indebtedness is held by
a trust or other intermediate entity established directly or indirectly by the issuer, the
securities of such intermediate entity that have) a separate CUSIP number shall be deemed to be a
series of the issuers long-term indebtedness for money borrowed that is separate from each other
series of such indebtedness.
Eligible Subordinated Debt
means, at any time in respect of any issuer, each series
of the issuers then-outstanding unsecured long-term indebtedness for money borrowed that (a) upon
a bankruptcy, liquidation, dissolution or winding up of the issuer, ranks senior to the
Subordinated Notes and subordinate to the issuers then outstanding series of unsecured
indebtedness for money borrowed that ranks most senior, (b) is then assigned a rating by at least
one NRSRO (provided that this clause (b) shall apply on a Redesignation Date only if on such date
the issuer has outstanding subordinated long-term indebtedness for money borrowed that satisfies
the requirements in clauses (a), (c) and (d) that is then assigned a rating by at least one NRSRO),
(c) has an outstanding principal amount of not less than $100,000,000, and (d) was issued through
or with the assistance of a commercial or investment banking firm or firms acting as underwriters,
initial purchasers or placement or distribution agents. For purposes of this definition as applied
to securities with a CUSIP number, each issuance of long-term indebtedness for money borrowed that
has (or, if such indebtedness is held by a trust or other intermediate entity established directly
or indirectly by the issuer, the securities of such intermediate entity that have) a separate CUSIP
number shall be deemed to be a series of the issuers long-term indebtedness for money borrowed
that is separate from each other series of such indebtedness.
Guarantor
has the meaning specified in the introduction to this instrument.
Holder
means, as to the Covered Debt then in effect, each record holder of such
Covered Debt as reflected on the securities register maintained by or on behalf of the Company or
the applicable Guarantor with respect to such Covered Debt and each beneficial owner of such
Covered Debt holding such Covered Debt through a participant in a clearing agency.
Initial Covered Debt
means the Companys 6.875% Series B Senior Notes due March 1,
2033 (CUSIP No. 293791AF6).
7
Intent-Based Replacement Disclosure
means, as to any security or combination of
securities, that the issuer or any of its Subsidiaries has publicly stated its intention, either in
the prospectus or other offering document under which such securities were initially offered for
sale or in filings with the Commission made by the issuer under the Securities Exchange Act prior
to or contemporaneously with the issuance of such securities, that the issuer or any of its
Subsidiaries will redeem, repurchase, purchase or defease such securities only with the proceeds
(or an applicable percentage of proceeds) or Market Value of replacement capital securities that
have terms and provisions at the time of redemption, repurchase, purchase or defeasance that
receive as much or more equity-like credit than the securities then being redeemed, repurchased,
purchased or defeased, raised within 180 days of the applicable redemption, purchase or defeasance
date.
Mandatory Trigger Provision
means, as to any Qualifying Capital Securities,
provisions in the terms thereof or of the related transaction agreements that:
(a) require, or at its option in the case of non-cumulative perpetual preferred units
permit, the issuer of such Qualifying Capital Securities to make payment of Distributions on
such securities only pursuant to the issue and sale of APM Qualifying Securities, within two
years of a failure of the issuer to satisfy one or more financial tests set forth in the
terms of such Qualifying Capital Securities or related transaction agreements, in an amount
such that the net proceeds of such sale are at least equal to the amount of unpaid
Distributions on such Qualifying Capital Securities (including without limitation all
deferred and accumulated amounts), and in either case require the application of the net
proceeds of such sale to pay such unpaid Distributions,
provided
that (i) such
Mandatory Trigger Provision shall limit the issuance and sale of Common Units, Subordinated
Units and Qualifying Warrants the proceeds of which may be applied to pay such Distributions
pursuant to such provision to the Common Cap, unless the Mandatory Trigger Provision
requires such issuance and sale within one year of such failure, and (ii) the amount of
Qualifying Preferred Units the net proceeds of which the issuer may apply to pay such
Distributions pursuant to such provision may not exceed the Preferred Cap;
(b) other than in the case of non-cumulative preferred unit, if the provisions
described in clause (a) do not require such issuance and sale within one year of such
failure, prohibit the issuer and any of its Subsidiaries from repurchasing any securities
that are
pari passu
with or junior to its respective APM Qualifying Securities, the proceeds
of which were used to pay deferred Distributions since such failure before the date six
months after the issuer applies the net proceeds of the sales described in clause (a) to pay
such unpaid Distributions in full;
(c) other than in the case of non-cumulative perpetual preferred units, include a
Bankruptcy Claim Limitation Provision; and
(d) prohibit the issuer of such securities from redeeming or purchasing any of its
securities ranking upon the liquidation, dissolution or winding up of the issuer junior to
or
pari passu
with any APM Qualifying Securities the proceeds of which were used to settle
deferred interest during the relevant deferral period prior to the date six months
8
after the issuer applies the net proceeds of the sales described in clause (a) above to
pay such deferred Distributions in full;
provided
(and it being understood) that:
(i) the issuer will not be obligated to issue (or use commercially reasonable
efforts to issue) any such APM Qualifying Securities for so long as a Market
Disruption Event has occurred and is continuing;
(ii) if, due to a Market Disruption Event or otherwise, the issuer is able to
raise and apply some, but not all, of the eligible proceeds necessary to pay all
deferred Distributions on any Distribution Date, the issuer will apply any available
eligible proceeds to pay accrued and unpaid Distributions on the applicable
Distribution Date in chronological order subject to the Common Cap and Preferred
Cap, as applicable; and
(iii) if the issuer has outstanding more than one class or series of securities
under which it is obligated to sell a type of any such APM Qualifying Securities and
applies some part of the proceeds to the payment of deferred Distributions, then on
any date and for any period the amount of net proceeds received by the issuer from
those sales and available for payment of deferred Distributions on such securities
shall be applied to such securities on a
pro rata
basis up to the Common Cap and the
Preferred Cap, as applicable, in proportion to the total amounts that are due on
such securities.
No remedy other than Permitted Remedies will arise by the terms of such securities or related
transaction agreements in favor of the holders of such securities as a result of the issuers
failure to pay Distributions because of the Mandatory Trigger Provision until Distributions have
been deferred for one or more Distribution Periods that total together at least ten years.
Market Disruption Events
means the occurrence or existence of any of the following
events or sets of circumstances:
(a) the issuer would be required to obtain the consent or approval of its unitholders
or a regulatory body (including, without limitation, any securities exchange) or
governmental authority to issue or sell APM Qualifying Securities and such consent or
approval has not yet been obtained notwithstanding the issuers commercially reasonable
efforts to obtain such consent or approval, or a regulatory authority instructs the Company
or such Guarantor not to sell or offer for sale APM Qualifying Securities at such time;
(b) trading in securities generally (or in the Companys Common Units or the preferred
units of the Company or the Guarantor) on the New York Stock Exchange or any other national
securities exchange or over-the-counter market on which the Common Units and/or the
Companys or the Guarantors preferred units are then listed or traded shall have been
suspended or the settlement of such trading generally shall have been materially disrupted
or minimum prices shall have been established on any such exchange or market by the
Commission, by the relevant exchange or by any other
9
regulatory body or governmental body having jurisdiction, and the establishment of such
minimum prices materially disrupts or otherwise has a material adverse effect on trading in,
or the issuance and sale of, Common Units and/or such preferred units;
(c) a banking moratorium shall have been declared by the federal or state authorities
of the United States and such moratorium materially disrupts or otherwise has a material
adverse effect on trading in, or the issuance and sale of, the APM Qualifying Securities;
(d) a material disruption shall have occurred in commercial banking or securities
settlement or clearance services in the United States and such disruption materially
disrupts or otherwise has a material adverse effect on trading in, or the issuance and sale
of, the APM Qualifying Securities;
(e) the United States shall have become engaged in hostilities, there shall have been
an escalation in hostilities involving the United States, there shall have been a
declaration of a national emergency or war by the United States or there shall have occurred
any other national or international calamity or crisis and such event materially disrupts or
otherwise has a material adverse effect on trading in, or the issuance and sale of, the APM
Qualifying Securities;
(f) there shall have occurred such a material adverse change in general domestic or
international economic, political or financial conditions, including without limitation as a
result of terrorist activities, and such change materially disrupts or otherwise has a
material adverse effect on trading in, or the issuance and sale of, the APM Qualifying
Securities;
(g) an event occurs and is continuing as a result of which the offering document for
such offer and sale of APM Qualifying Securities would, in the reasonable judgment of the
Company or the Guarantor, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading and either (a) the disclosure of that event at such time, in the reasonable
judgment of the Company or such Guarantor, is not otherwise required by law and would have a
material adverse effect on the business of the issuer or (b) the disclosure relates to a
previously undisclosed proposed or pending material business transaction, the disclosure of
which would impede the ability of the Company or such Guarantor to consummate such
transaction,
provided
that no single suspension period contemplated by this
paragraph (g) shall exceed 90 consecutive days and multiple suspension periods contemplated
by this paragraph (g) shall not exceed an aggregate of 180 days in any 360-day period; or
(h) the issuer reasonably believes, for reasons other than those referred to in
paragraph (g) above, that the offering document for such offer and sale of APM Qualifying
Securities would not be in compliance with law or a rule or regulation of the Commission and
the issuer is unable to comply with such law or rule or regulation or such compliance is
unduly burdensome,
provided
that no single suspension period contemplated by this
paragraph (h) shall exceed 90 consecutive days and multiple
10
suspension periods contemplated by this paragraph (h) shall not exceed an aggregate of
180 days in any 360-day period.
The definition of
Market Disruption Event
as used in any Qualifying Capital
Securities may include less than all of the paragraphs outlined above, as determined by the issuer
at the time of issuance of such securities, and in the case of clauses (a), (b), (c) and (d), as
applicable to a circumstance where the issuer would otherwise endeavor to issue preferred units,
shall be limited to circumstances affecting markets where the preferred units of the Company or
such Guarantor trades or where a listing for its trading is being sought.
Market Value
means, on any date, the closing sale price per Common Unit (or if no
closing sale price is reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and the average ask prices) on that date as reported in
composite transactions by the New York Stock Exchange or, if the Common Units are not then listed
on the New York Stock Exchange, as reported by the principal U.S. securities exchange on which the
Common Units are traded or quoted; if the Common Units are not either listed or quoted on any U.S.
securities exchange on the relevant date, the Market Value will be the average of the mid-point of
the bid and ask prices for the Common Units on the relevant date submitted by at least three
nationally recognized independent investment banking firms selected by the Company for this purpose
or, in the event such bid and ask prices are not available and in the case of Subordinated Units
and Rights to acquire Units, a value determined by a nationally recognized independent investment
banking firm selected by the Companys Board (or a duly authorized committee thereof) for this
purpose.
Measurement Period
with respect to any redemption or any repurchase, purchase or
defeasance means the period (i) beginning on the date that is 180 days prior to delivery of notice
of such redemption or the date of such repurchase, purchase or defeasance, respectively, and (ii)
ending on such notice date for redemption or the date of such repurchase, purchase or defeasance,
respectively. Measurement Periods cannot run concurrently.
Non-Cumulative
means, with respect to any securities, that the issuer thereof may
elect not to make any number of periodic Distributions without any remedy arising under the terms
of the securities or related agreements in favor of the holders, other than one or more Permitted
Remedies. Securities that include an Alternative Payment Mechanism shall also be deemed to be
Non-Cumulative for all purposes of this Replacement Capital Covenant.
NRSRO
means any nationally recognized statistical rating organization within the
meaning of Section 3(a)(62) of the Securities Exchange Act that has assigned a credit rating to the
Subordinated Notes, as set forth in the Prospectus Supplement, dated October 7, 2009 relating to
the Subordinated Notes.
Optional Deferral Provision
means, as to any securities, a provision in the terms
thereof or of the related transaction agreements to the effect that either:
(a) (i) the issuer of such securities may, in its sole discretion, defer in whole or in
part payment of Distributions on such securities for one or more consecutive Distribution
Periods of up to five years or, if a Market Disruption Event is continuing, ten years,
11
without any remedy other than Permitted Remedies and (ii) such securities are subject
to an Alternative Payment Mechanism (
provided
that such Alternative Payment
Mechanism need not apply during the first five years of any deferral period and need not
include a Common Cap, Preferred Cap, Bankruptcy Claim Limitation Provision or Repurchase
Restriction); or
(b) the issuer of such securities may, in its sole discretion, defer or skip in whole
or in part payment of Distributions on such securities for one or more consecutive
Distribution Periods up to at least ten years, without any remedy other than Permitted
Remedies.
Permitted Remedies
means, with respect to any securities, one or more of the
following remedies:
(a) rights in favor of the holders of such securities permitting such holders to elect
one or more directors of the issuer (including any such rights required by the listing
requirements of any securities exchange on which such securities may be listed or traded),
or
(b) complete or partial prohibitions on the issuer paying Distributions on or
repurchasing Common Units, Subordinated Units or other securities that rank
pari passu
with
or junior as to Distributions to such securities for so long as Distributions on such
securities, including unpaid Distributions, remain unpaid.
Person
means any individual, corporation, partnership, joint venture, trust, limited
liability company, corporation or other entity, unincorporated organization or government or any
agency or political subdivision thereof.
Preferred Cap
has the meaning specified in the definition of Alternative Payment
Mechanism.
Qualifying Capital Securities
means securities (other than Common Units,
Subordinated Units or Rights to acquire Units and securities convertible into or exchangeable for
Common Units or Subordinated Units) that in the determination of the Board of the Company or the
Guarantor, reasonably construing the definitions and other terms of the Replacement Capital
Covenant, meet one of the following criteria:
(a) in connection with any redemption, defeasance or purchase of Subordinated Notes
prior to the Stepdown Date:
(i) junior subordinated debt securities and guarantees issued by any member of
the Company Group with respect to such securities if the junior subordinated debt
securities and guarantees (1) contractually rank
pari passu
with or junior to the
Subordinated Notes or the Guarantors guarantees thereof upon the liquidation,
dissolution or winding up of the Company or the Guarantor, respectively, (2) are
Non-Cumulative, (3) have no maturity or a maturity of at least 60 years and (4) are
subject to a Qualifying Replacement Capital Covenant;
12
(ii) securities issued by any member of the Company Group that (1)
contractually rank
pari passu
with or junior to the Subordinated Notes or the
Guarantors guarantees thereof upon the liquidation, dissolution or winding up of
the Company or the Guarantor, respectively, (2) have no maturity or a maturity of at
least 60 years and (3)(a) are Non Cumulative and are subject to a Qualifying
Replacement Capital Covenant or (b) have a Mandatory Trigger Provision and an
Optional Deferral Provision and are subject to Intent-Based Replacement Disclosure;
(iii) securities issued by any member of the Company Group that (1)
contractually rank
pari passu
with or junior to the Subordinated Notes or the
Guarantors guarantees thereof upon the liquidation, dissolution or winding up of
the Company or the Guarantor, respectively, (2) have no maturity or a maturity of at
least 40 years, (3) are subject to a Qualifying Replacement Capital Covenant and
(4) have a Mandatory Trigger Provision and an Optional Deferral Provision; or
(iv) Non-Cumulative Qualifying Preferred Units; or
(b) in connection with any redemption, defeasance or purchase of Subordinated Notes
prior to the Stepdown Date:
(i) non-cumulative preferred units issued by any member of the Company Group
that contractually ranks junior to the Subordinated Notes or the Guarantors
guarantees thereof upon a liquidation, dissolution or winding up of the Company or
the Guarantor, respectively, and (1) (a) have no maturity or a final maturity of at
least 60 years and (b) are subject to Intent-Based Replacement Disclosure; or (2)
(a) have no maturity or a final maturity of at least 40 years and (x) are subject to
a Qualifying Replacement Covenant or (y) are subject to Intent-Based Replacement
Disclosure and have a Mandatory Trigger Provision; or (3) (a) have no maturity or a
final maturity of at least 25 years, (b) are subject to a Qualifying Replacement
Covenant and (c) have a Mandatory Trigger Provision;
(ii) cumulative preferred units issued by any member of the Company Group that
contractually rank junior to the Subordinated Notes or the Guarantors guarantees
thereof upon a liquidation, dissolution or winding up of the Company or the
Guarantor, respectively, and (1) have no prepayment obligation on the part of the
issuer thereof, whether at the election of the holders or otherwise, and (2)
(a) have no maturity or a maturity of at least 60 years, (b) have an Optional
Deferral Provision and (c) are subject to a Qualifying Replacement Capital Covenant;
(iii) securities issued by any member of the Company Group that (1)
contractually rank
pari passu
with or junior to the Subordinated Notes or the
Guarantors guarantees thereof upon a liquidation, dissolution or winding up of the
Company or the Guarantor, respectively, (2) have no maturity or a maturity of at
least 60 years and an Optional Deferral Provision, and (3) either (a) are subject
13
to a Qualifying Replacement Capital Covenant or (b) have a Mandatory Trigger
Provision and are subject to Intent-Based Replacement Disclosure;
(iv) securities issued by any member of the Company Group that (1)
contractually rank
pari passu
with or junior to the Subordinated Notes or the
Guarantors guarantees thereof upon a liquidation, dissolution or winding up of the
Company or any of the Guarantor, respectively, (2) are Non-Cumulative, (3) have no
maturity or a maturity of at least 40 years and (4) either (a) are subject to a
Qualifying Replacement Capital Covenant or (b) have a Mandatory Trigger Provision
and an Optional Deferral Provision and are subject to Intent-Based Replacement
Disclosure;
(v) securities issued by any member of the Company Group that (1) contractually
rank junior to all of the senior and subordinated debt of the Company or the
Guarantor other than the Subordinated Notes and securities ranking
pari passu
with
the Subordinated Notes, (2) have an Optional Deferral Provision and a Mandatory
Trigger Provision and (3) have no maturity or a maturity of at least 60 years and
are subject to a Qualifying Replacement Capital Covenant; or
(vi) other securities issued by any member of the Company Group that
(1) contractually rank upon a liquidation, dissolution or winding-up of the Company
or any of the Guarantor
pari passu
with or junior to the Subordinated Notes or the
Guarantors guarantees thereof, respectively, (2) have no maturity or a maturity of
at least 25 years and (3) are subject to a Qualifying Replacement Capital Covenant
and have a Mandatory Trigger Provision and an Optional Deferral Provision; or
(c) in connection with any redemption, defeasance or purchase of the Subordinated Notes
on or after the Stepdown Date:
(i) all securities described under clauses (i) and (ii) of this definition;
(ii) cumulative preferred units issued by the Company or the Guarantor that
(1) have no maturity or a maturity of at least 60 years and (2) are subject to
Intent-Based Replacement Disclosure;
(iii) securities issued by any member of the Company Group that (1)
contractually rank
pari passu
with or junior to the Subordinated Notes or the
Guarantors guarantees thereof upon a liquidation, dissolution or winding up of the
Company or the Guarantor, respectively, (2) either (a) have no maturity or a
maturity of at least 60 years and Intent-Based Replacement Disclosure or (b) have no
maturity or a maturity of at least 30 years and are subject to a Qualifying
Replacement Capital Covenant and (3) have an Optional Deferral Provision;
(iv) securities issued by any member of the Company Group that (1)
contractually rank junior to all of the senior and subordinated debt of the Company
or the Guarantor other than the Subordinated Notes and securities
14
ranking
pari passu
with the Subordinated Notes or the Guarantors guarantees
thereof, respectively, (2) have a Mandatory Trigger Provision and an Optional
Deferral Provision and (3) have no maturity or a maturity of at least 30 years and
are subject to Intent-Based Replacement Disclosure; or
(v) cumulative preferred units issued by any member of the Company Group that
contractually rank junior to the Subordinated Notes or the Guarantors guarantees
thereof upon a liquidation, dissolution or winding up of the Company or the
Guarantor, respectively, and have a maturity of at least 40 years and are subject to
a Qualifying Replacement Capital Covenant.
It is acknowledged that, as of the date hereof, securities issued by a master limited partnership
containing an Alternative Payment Mechanism or a Mandatory Trigger Provision have not been approved
as Qualifying Capital Securities by all of the NRSROs. As a result, such securities will not be
issued or considered as Qualifying Capital Securities until there is prior written approval from
all NSROs then maintaining a credit rating on such issuer.
Qualifying Preferred Units
means non-cumulative perpetual preferred units issued by
any member of the Company Group that (a) contractually rank
pari passu
with or junior to all other
preferred units of the issuer thereof and contains no remedies as a consequence of non-payment of
Distributions other than Permitted Remedies and (b) either (i) are subject to Intent-Based
Replacement Disclosure and have a provision that prohibits the issuer from paying any Distributions
thereon upon its failure to satisfy one or more financial tests set forth therein or (ii) are
subject to a Qualifying Replacement Capital Covenant.
Qualifying Replacement Capital Covenant
means (i) a replacement capital covenant
substantially similar to this Replacement Capital Covenant or (ii) a replacement capital covenant,
as identified by the Board of the Company or the Guarantor, acting in good faith and in its
reasonable discretion and reasonably construing the definitions and other terms of this Replacement
Capital Covenant, (a) entered into by an issuer that at the time it enters into such replacement
capital covenant is a reporting company under the Securities Exchange Act and (b) that restricts
the issuer from redeeming, defeasing or purchasing identified securities except to the extent of
the applicable percentage of the net proceeds (or Market Value) of specified replacement capital
securities that have terms and provisions at the time of redemption, defeasance or purchase that
receive as much or more equity-like credit than the securities then being redeemed, defeased or
purchased, raised within the six month period prior to the applicable redemption, defeasance or
purchase date.
Qualifying Warrants
means net settled warrants to purchase Common Units or
Subordinated Units that have an exercise price greater than the current Market Value of the
issuers Common Units or Subordinated Units as of their date of issuance, that do not entitle the
issuer to redeem for cash and the holders of such warrants are not entitled to require the issuer
to repurchase for cash in any circumstance.
Redesignation Date
means, as to the Covered Debt in effect at any time, the earliest
of (a) the date that is two years prior to the final maturity date of such Covered Debt, (b) if
such Covered Debt is to be redeemed, repurchased, purchased or defeased by a member of the
15
Company Group either in whole or in part with the consequence that, after giving effect to
such redemption, repurchase, purchase or defeasance, the outstanding principal amount of such
Covered Debt is less than $100,000,000, the applicable redemption, purchase, repurchase or
defeasance date and (c) if such Covered Debt is not Eligible Subordinated Debt, the date on which
the Company or the Guarantor issues Eligible Subordinated Debt.
Replacement Capital Covenant
has the meaning specified in the introduction to this
instrument.
Replacement Capital Securities
means
(a) Common Units, Subordinated Units and Rights to acquire Units;
(b) Debt Exchangeable for Equity; and
(c) Qualifying Capital Securities.
Repurchase Restriction
has the meaning specified in the definition of Alternative
Payment Mechanism.
Rights to acquire Units
includes any right to acquire Common Units or Subordinated
Units, including any option or right to acquire Common Units or Subordinated Units pursuant to a
unit purchase plan or employee benefit plan.
Securities Exchange Act
means the Securities Exchange Act of 1934, as amended.
Securities
has the meaning specified in Recital B.
Stepdown Date
means June 1, 2017.
Subordinated Indenture
has the meaning specified in Recital A.
Subordinated Notes
has the meaning specified in Recital A.
Subordinated Units
means limited partnership interests of a member of the Company
Group that rank
pari passu
with or junior to the Common Units of the issuer thereof provided that
such interests are perpetual, with no prepayment obligation on the part of the issuer thereof,
whether at the election of the holder or otherwise.
Subsidiary
means, at any time, any Person the units, shares of stock, or other
ownership interests of which having ordinary voting power to elect a majority of the board of
directors or other managers of such Person are at the time owned, or the management or policies of
which are otherwise at the time controlled, directly or indirectly through one or more
intermediaries (including other Subsidiaries) or both, by another Person.
Supplemental Indenture
means the Eighteenth Supplemental Indenture, dated as of
October 27, 2009, to the Subordinated Indenture.
Termination Date
has the meaning specified in Section 4(a).
16
Units
means Common Units and/or Subordinated Units, as applicable.
17